Howard Jarvis Taxpayers Assn. v. Padilla

S220289. Jan. [No. 2016.] al., Petitioners,

HOWARD JARVIS TAXPAYERS ASSOCIATION et v. PADILLA, State, etc., ALEX as Secretary Respondent; CALIFORNIA, THE LEGISLATURE OF STATE OF Real Interest. Party Counsel

Bell, Hiltachk, Bell, Jr., McAndrews & Thomas W. Hiltachk and Charles H. for Petitioners.

No for appearance Respondent. DeLand, Pratt; A

Diane F. A. Robert Strumwasser & Boyer-Vine, Jeffrey Woocher, Woocher, Fredric D. Michael J. Strumwasser and Dale K. Larson for Real Interest. Party Kendall, T. Elizabeth B. David H. Gans and Tom

Douglas Wydra, Donnelly for Constitutional Center as Anticus Curiae on behalf of Real Accountability in Interest. Party Fein; Porter,

Ronald A. Arnold & Steven L. and Antie L. for Mayer Medley Inc., Free for as Amicus Curiae on behalf of Real Speech People, Party Interest. Salerno,

Michael B. Steven Bonorris and Nedda Black for The Center for State and Local Government Law as Amicus Curiae on behalf of Respondent Real Interest. Party

Opinion In 2014, WERDEGAR, the California on the Legislature sought place J. election ballot a 49. The general nonbinding advisory question, Proposition measure would have asked the electorate whether should Congress propose, and the a federal constitutional amendment Legislature ratify, overturning United States Court decision United v. Federal Election Supreme Citizens (2010) Comm ’n 558 U.S. 310 L.Ed.2d 130 S.Ct. [175 876]. to a for writ of mandate response petition urging unconstitutionality action, we issued an order to show cause and directed the Legislature’s of State to refrain from further action connection with Secretary taking 49 on the ballot. Our action did not rest on a final placement Proposition Instead, determination of 49’s lawfulness. we concluded “the Proposition is uncertain” and the balance of from proposition’s validity hardships permit- ballot, an invalid measure to remain on the as ting against delaying election, (See to a future favor of immediate relief. proposition weighed (1984) American Federation Labor v. Eu 36 Cal.3d Cal.Rptr. 609].) 686 P.2d We now resolve the merits of 49’s We Proposition constitutionality. conclude, law, (1) as a matter of state has to conduct authority reasonable means to inform the exercise of its other investigations by powers; (2) those other are the for national constitu- among powers petition conventions, amendments, tional federal constitutional and call on ratify (U.S. and other states to exercise their own federal article V Congress powers Const., V); (3) art. neither constitutional text nor although judicial precedent definitive answers to the historical provide question, long-standing practice the states demonstrates a common among understanding legislatures may consult with and seek from their constituents on formally nonbinding input (4) matters relevant to the federal constitutional amendment process; nothing in the state Constitution the use of to inform the prohibits advisory questions exercise of its article V-related Legislature’s powers; applying review, deferential 49 is related to the exercise of Proposition reasonably those and thus constitutional. We the instant for a writ powers deny petition of mandate.

495 Background Factual and Procedural Comm’n, 310, In United v. Federal Election 558 U.S. Citizens divided United States Court invalidated federal election law restric- Supreme tions on the of that a political speech corporations, holding speaker’s identity as a as to natural could not corporation, opposed person, justify greater of than the First Amendment would have otherwise regulation speech permit- United, 319, issuance, 365.) (Citizens ted. the few since its years United’s of has holding concerning speech rights corporations Citizens debate, considerable democratic criticism the generated receiving presiden- Address,1 tial State of the Union rise to resolutions giving Congress Constitution,2 amend the calls for reconsideration within the sparking United States Court itself.3 have with the Supreme Many agreed Supreme Court while others have concluded the Constitution must be majority, amended to renewed restraints on involvement permit corporate popular elections. first issue with United Joint joined Assembly Citizens 1,

Resolution No. introduced 2012 and both houses of the adopted by 1, (Assem. (2013-2014 in 2014. Joint Res. No. Stats. 2014 Reg. Sess.) res. ch. The resolution declared: are entities “Corporations legal create and the that under the United States governments rights they enjoy Constitution should be more defined than the afforded to narrowly rights (Ibid.) natural United’s to the persons.” Acknowledging holding Citizens the resolution exercised the federal constitutional contrary, Legislature’s to the United States to call a constitutional “apply Congress convention for the sole an amendment to the United purpose proposing States Constitution that would limit for corporate personhood purposes finance and and would further declare that campaign political speech money (Assem. does not constitute be limited.” Joint speech may legislatively 77; (2013-2014 Const., Sess.) Res. No. Stats. 2014 res. ch. see U.S. art. Reg. V ... on the of two-thirds of Congress application legislatures [“The states, .”].) the several shall call a convention for amendments . . . proposing (2013-2014 Bill enacted Senate No. 1272 Separately, Reg. Sess.) 1272), (Senate Bill No. act to submit an to the advisory question “[a]n Obama, Congress, Congressional President Barack H. State of the Union Address to 27, 2010). (daily Record H415 ed. Jan. (2013); Congress, Report Senate Joint Resolution No. 113th 1st Session see Senate 113-223, Session, (2013). pages No. 1st 2-3 516, _ [132 Partnership See American Tradition v. Bullock 567 U.S. S.Ct. 2491-2492, (dis. J.) (dissent opn. Breyer, joined by Ginsburg, 183 L.Ed.2d 448-449] JJ.). Sotomayor Kagan, & 2014, 175.) (Stats. A voters finance . . . .” ch. relating campaign lengthy United, decried noted the article V for preamble process amending Citizens Constitution, the United States and asserted of California and of ‘“[t]he the United States have used ballot measures as a of instruct- previously way their elected about the achons want to see ing representatives express they behalf, them take on their to amend the United States including provisions 2014, 175, 2, id., (Stats. (m); Constitution.” ch. subd. see generally § § The measure election to be consolidated with the Novem- special ”call[ed] 4, 2014, Bill ber statewide election” Counsel’s Sen. general (Legis. Dig., 2014, 175, Sess.); 3) (2013-2014 No. 1272 see Stats. ch. and directed Reg. § of State to submit to voters at that election an Secretary advisory question whether should and the a consti- asking Congress propose, Legislature ratify, United, tutional amendment and thereafter to submit the overturning Citizens 175, 4). (Stats. results to ch. The measure became law Congress § 2014, after both houses it and the Governor declined to July passed sign Const., IV, (See (b)(3) veto it. Cal. art. subd. bills to [authorizing § inaction].) become statutes after gubernatorial then of State Debra Bowen the advi- Subsequently, Secretary designated 49 and ballot materials. The sory question Proposition began preparing “ was to read: ‘Shall the of the United States proposition Congress propose, and the California an amendment or amendments to the Legislature ratify, United States Constitution to overturn Citizens United v. Federal Election 876], Commission 558 U.S. 310 L.Ed.2d 130 S.Ct. other to allow the full or limitation applicable judicial precedents, regulation citizens, contributions and to ensure that all campaign spending, regardless wealth, another, their views to one and to make clear that the may express the United States Constitution are the of natural rights protected by rights ” 175, 4, (Stats. (a).) ch. subd. persons only?’ § (collec- Petitioners Howard Jarvis Association and Jon Taxpayers Coupal Jarvis) Howard filed a for writ of mandate tively, promptly petition Third District Court of Bowen from Appeal, seeking prevent Secretary A with 49 on the November 2014 ballot. proceeding placement Proposition divided Court of denied relief. Appeal

Howard Jarvis next filed an for writ of original emergency petition mandate this court. After we issued an order to show expedited briefing, cause and Bowen from further actions connection stayed Secretary taking decision, with 49 until after a final Proposition effectively removing from the November 2014 ballot. The order advisory question explained, constraints the court to decide whether to require immediately permit ”[t]ime 4, 2014, 49 to be on the November ballot final Proposition placed pending A resolution of this matter.” concluded 49’s five-justice majority Proposition

497 was uncertain and the cost of a lawful validity postponing potentially ballot, to a later a course the itself had proposition Legislature contemplated bill,4 in an earlier version of the was the cost of a outweighed by permitting “ invalid to reach the ballot. ‘The of an potentially proposition presence attention, invalid measure on the ballot steals time and from the money numerous valid on the same ballot. It will confuse some voters propositions others, invalid, and frustrate and an ultimate decision that the measure is measure, in after the voters have voted favor of the tends to coming denigrate (American use of the initiative Federation legitimate procedure.’ 687, Eu[, 691.)”5 Labor v. 36 Cal.3d supra,] in Our actions 2014 resolved whether 49 could be August Proposition Bill on the November 2014 ballot. Senate No. 1272 directs placed only 2014, 175, 3-4), (Stats. on that ballot ch. and this case is thus placement §§ moot. But whether the ever has technically Legislature place undecided, on a statewide ballot is and advisory questions important Bill the event we were to conclude Senate No. 1272 was indeed constitu tional, the could an identical measure pass directing placement the same on a future ballot. to our order to advisory question response cause, show Howard Jarvis and real interest the state party California have briefed the raises: whether larger questions petition are ever and whether legislative advisory questions permissible, particular 49 is or should be from on Proposition permissible enjoined placement any future statewide ballot. that the of an election Notwithstanding passage cycle has mootness as a obstacle to a interposed potential resolving significant issue, election law we conclude retaining jurisdiction addressing (See merits is the better course here. Producers Assn. v. Independent Energy 644, 178]; (2006) McPherson 38 Cal.4th 136 P.3d Cal.Rptr.3d [44 986, 994, Costa v. Court 37 Cal.4th Superior Cal.Rptr.3d 675].) 128 P.3d

Discussion I. 49 and the State Power to Proposition Legislature’s Investigate

Our Constitution vests of this State ... legislative power “[t]he (Cal. California which consists of the Senate and . . . .” Assembly Const., IV, 1.) art. It is the nature of state constitutions that unlike they, § Constitution, (Marine the federal do not limited generally grant only powers. 28, 2014, (calling special See Senate Bill No. as amended March section 1 a election election). conjunction general with the Nov. 2016 separate concurring defending provisionally Justice Liu issued a statement the decision to Proposition Cantil-Sakauye forestall a vote on while Chief Justice dissented from the portion granting stay, maintaining of the order that interim relief was unwarranted. 1, (2005) Forests v. Coastal Com. 36 Cal.4th Society [30 California 30, 1062].) 113 P.3d “unlike the United States Cal.Rptr.3d Consequently, which those to it the Congress, possesses only specific powers delegated by Constitution, federal it is well established that the California Legislature as limited possesses plenary legislative authority except specifically (Id. California Constitution.” at at the core of that Lying plenary is the to enact laws. Assn. v. authority power (California Redevelopment 580].) (2011) Matosantos 53 Cal.4th 267 P.3d Cal.Rptr.3d It has been said that to that has the pursuant authority, “[t]he actual act it to those limits that power pass any pleases,” subject only may arise elsewhere the state or federal Constitutions. v. (Nougues Douglass 65, 70.) (1857) 7 Cal.

499 The function of a is “to enact wise and well- principal legislature (In 227, (1929) formed and needful laws” re Battelle 207 Cal. 240 P. [277 725]), but a cannot exercise sound without information. legislature judgment “the of of some sort must exist as an Accordingly, necessity investigation incident and to the exercise of indispensable auxiliary proper legislative 241; (Id. (1939) see Int. Com. v. Southard 13 power.” p. Special Assembly “ 497, Cal.2d 503 P.2d to enact power legislation ‘necessarily [90 304] [the that the members of each house of the must investi presupposes legislature ”].) for The details of how this is gate necessity legislation’ implied power to be exercised are to the discretion the first consigned Legislature’s “ instance: ‘The ascertainment of facts for is within the pertinent legislation of the of When a power lawmaking department government. legislative body has a to do an act it must be allowed to select the means within right ” (Parker (1941) reasonable bounds.’ v. 18 Cal.2d 91 P.2d Riley [113 873]; see also id. at p. [“Intelligent legislation upon complicated of modern is the absence of accurate informa problems society impossible tion on the reasonable for part legislators, any procedure securing such information is proper.”].)

The is not unlimited. While the investigative power Legislature’s Valley (see and functions are extensive Carmel Fire Protection Dist. v. powers State 25 Cal.4th 20 P.3d Cal.Rptr.2d of California 533]), must share with reserved to the executive and they space powers branches. activities can with the judicial Although Legislature’s overlap extent, functions of other branches to an not use its Legislature may to “defeat or the exercise of its fellow branches’ powers materially impair” functions, constitutional nor “intrude a core zone” of another branch’s upon Com., (Marine Forests v. Coastal authority. Society supra, California other, Cal.4th at The no less than not be p. investigative power, any may used to trench matters outside the upon falling legislative purview. concerns,

Even aside from separation powers investigative power “in into those reference to which permits inquiry only subjects Legisla [the (Ex has to act.” D. O. 29 Cal. at power parte McCarthy, supra, ture] omitted.) italics is as a aid to the execution Investigation permitted necessary of other not as an of matters with to legislative powers, expansion respect limit, which the act. Where those other are Legislature may powers subject (See so too an of them be constrained. investigation support may Special Southard, Int. Com. v. 13 Cal.2d at ‘when the Assembly [“ ceases, then the for the power legislate power investigate purpose ceases, this or stated another aiding legislature exercising way, when the main dies the incidental or dies legislating implied power ”].) with it’ as for investigative power, constitutionally implied necessary the execution of the other does not stand as an Legislature’s powers, unbounded, in its own freestanding power right. while the method of is for the

Finally, investigation discretion, (Parker in choose its broad within reason v. 18 Cal.2d Riley, supra, 90-91), we do not foreclose the limits arise from other possibility may constitutional and the values embrace. provisions they constraints,

Given these to determine whether a action particular legislative is authorized as an exercise of we must the first investigative power, instance ascertain whether a nexus exists between the matter and investigated Bill some action the has to undertake. Senate potential authority No. 1272 seeks to conduct a statewide on a federal plebiscite proposed (Id., 4, (a), (b).) amendment and deliver its results to subds. Congress. § contends the should be understood as of an plebiscite part into how and whether to exercise the investigation Legislature’s powers connection with a future federal constitutional amendment. Accord potential we examine next the extent of the role the federal Constitution ingly, for state the amendment contemplates legislatures process.

II. State and Federal Constitutional Amendment Legislatures

The federal Constitution vests state with certain legislatures powers (See and duties connection with amendments to the federal Constitution. Const., V).) (article U.S. art. V Article V relevant “The provides part: whenever two-thirds of both houses shall deem it shall Congress, necessary, Constitution, amendments to this or on the propose application states, of two-thirds of the several shall call a convention for legislatures amendments, which, case, in either shall be valid to all intents and proposing Constitution, as of this when ratified purposes, part legislatures states, thereof, three-fourths of the several conventions three-fourths as the one or the other mode of ratification be may proposed by (Barron . . . .” This and cumbrous v. The Congress “unwieldy machinery” 243, 672]) (1833) Council Baltimore 32 U.S. 250 L.Ed. Mayor City [8 for the Constitution involves a altering two-stage process—proposal In ratification—with two available at each the first paths stage. stage, either or a national convention called for the proposal, Congress purpose may ratification, an amendment or amendments. the second propose stage, states, of the several either their or state supermajority through legislatures conventions, (See must for it to become law. United approve proposal 640, 220]; (1931) States v. 282 U.S. L.Ed. 51 S.Ct. Sprague [75 v. Jones 20 Cal.4th 978 P.2d Bramberg Cal.Rptr.2d 1240].)

The Constitution identifies two roles for state one at explicit legislatures, each At the a state stage. proposal stage, legislature may apply Congress (See, for the of a national convention. Sen. Joint Res. No. calling e.g.,

501 145, Sess.) (1935 Stats. 1935 res. ch. 2713-2714 for a Reg. pp. [calling convention to a federal amendment adopt permitting congressional regulation 25, commerce]; Sess.) (1911 of intrastate Sen. Joint Res. No. Stats. 1911 Reg. 73, res. ch. 2183-2184 for a convention to a federal pp. [calling adopt senators].) amendment for the direct election of At the ratification providing route, if chooses the ratification a state stage, Congress legislative legislature to, Smith, (Hawke (1920) 1 assent or an amendment. v. No. may reject, 221, 871, see, 495]; 253 U.S. 226-228 L.Ed. 40 S.Ct. Sen. Joint Res. e.g., [64 22, 45, Sess.) (1971 No. Stats. 1971 res. ch. 4161-4162 Reg. pp. [ratifying Amend.].) All the 26th but one of the 15 amendments to the federal Constitution since California’s statehood have been submitted to adopted state for legislatures approval. route,

If instead chooses the state convention ratification as it did Congress Prohibition, for the Amendment state Twenty-first repealing legislatures may still assume a role. Article V as much “what is conveys power through (Dillon (1921) as “what is v. Gloss reasonably implied” through expressed.” 994, 510].) 41 256 U.S. L.Ed. S.Ct. It grants Congress [65 state those and incidental” to the out legislatures powers “necessary carrying (State (1933) of tasks. ex rel. v. 127 Ohio St. explicitly required Donnelly Myers Dillon, 373-376; 918]; N.E. see at State ex rel. Tate v. Sevier pp. [186 895, 898].)7 (1933) 333 Mo. 662 S.W.2d When submitted the Congress conventions, of Prohibition to state state were repeal legislatures implicitly Tate, (State with the mechanics of the conventions. ex rel. charged establishing 898; State ex rel. at across the Donnelly, Legislatures country enacted how were to be chosen and when legislation establishing delegates (Brown, and where conventions would meet. Ratification of the Twenty-first Amendment to the Constitution of the United States 521-700 pp. laws]; see Stats. ch. 598-602 [collecting [establishing for Cal.’s convention to the 21st Amend. to the U.S. procedures ratify Const.].)

The several states have never called for a constitutional successfully date, convention. To each of the 27 federal amendments is the of a product But this does not mean state can no proposal by Congress. legislatures play until ratification. are instituted with the inherent part Legislatures (Jefferson, (1st A issue resolutions Manual of Practice ed. Parliamentary 1801) XXI), statements that or action” but policy § “declare[] entreat[] Eu, (American without the force of law Federation Labor v. binding supra, ed., (Cooke 1961) (Madison) (“No pages See also The Federalist No. 44 304-305 axiom is law, reason, clearly required, more established in or in than that wherever the end is the means authorised; general power thing given, every particular power are wherever a to do a is included.”); (Hamilton) necessary doing page for it is The Federalist No. (“What power, ability faculty doing thing? ability thing, is a but the What is the to do a execution?”). employing necessary but the the means to its 502 712).

36 Cal.3d at From the earliest of the state p. days Republic, legislatures have used that to wield its own article V authority press Congress proposal Unlike the convention these resolutions have instru- power. power, proven amendment; mental the federal Constitution reshaping through beginning amendment, with the first of one can find their influence very post-Bill Rights the Constitution’s evolution.8 underlying 1793, of Massachusetts and resolutions legislatures Virginia passed to their for a constitutional amendment

appealing representatives Congress the United States Court’s narrow construction of state overturning Supreme 440, (1793) 2 2 Chisholm v. U.S. 419 L.Ed. sovereign immunity Georgia [1 76, (See (1883) Dall. New v. Louisiana 108 U.S. 88 L.Ed. Hampshire 419]. [27 656, 478, res.]; (1855) 2 S.Ct. Florida v. 58 U.S. Georgia 176] [Mass. J.) res.].) (dis. 519-520 L.Ed. Senator Caleb opn. Campbell, 181] [Va. of Massachusetts such an Strong responded by moving Congress propose 520; (Florida (3d 4 amendment v. Annals of Georgia, p. Cong. Cong. 25, 1794) 29-30), and the first amendment was ratified pp. post-Bill Rights Const., Amend.). (U.S. in 1795 11th Similar resolutions the Twelfth preceded Amendment, (See (7th ratified 1804. 13 Annals of 1st Sess. Cong. Cong. Sess., 1802) res.]; 1803) (8th 11 95-96 Annals of 1st pp. Cong. Cong., [Mass. 509, 602-603, res.]; res.]; (1802) 1285 id. at 629 id. at pp. p. [N.Y. [N.C. res.].) (1802) 472 [Vt. War, Aside from the Civil the Constitution remained changes wrought by came, static for the next but when the next wave of state century, changes resolutions were at the forefront. California’s legislative again 1874, first the direct election of senators to and did so urged Congress action; 1896, in 1893 and 1900.9 Numerous other states took similar again Idaho, Indiana, Iowa, Kansas, Ohio, Wisconsin and Oregon, Wyoming 8 point, contemplated At one the Drafters of the federal Constitution a more direct role for initiating change. penultimate granted the states in The version of article V would have amendments, legislatures power propose days state themselves the but in the final (See power 1787 convention that was excised in favor of the to call for a convention. edit., 559, (Farrand ed.) 629-630.) pp. Records of the Federal Convention of 1787 propose given practice, elimination of a direct amendments has rise to the current act, whereby legislatures Congress Congress state resolve to that it should in turn decides proposal power. legislative firmly whether to invoke its article V Such resolutions are and, observed, fully ensconced in our constitutional traditions we have are consistent with Eu, (American article V. Federation Labor v. 36 Cal.3d at 20, (1873-1874 Sess.) Assembly Reg. chapter See Concurrent Resolution No. 9 resolution 973; 15, 620; (1893 Sess.) page Assembly Reg. chapter page Joint Resolution No. 7 resolution (1900 Sess.) chapter pages Senate Joint Resolution No. 2 Ex. resolution 27-28. In Legislature changed express powers, applying tack and invoked its article V for a constitu (Sen. propose providing tional convention to an amendment for the direct election of senators. 2183-2184; (1911 Sess.) Reg. Joint Res. No. Stats. 1911 res. ch. see Remarks of Jones, Cong. [“possibly got knocking Sen. Rec. 2770 Idaho and California tired of method”].) they the door of the Senate and concluded that would take their own had California their Legislatures joined instructing congressional represen- 54-530, (Sen. tatives favor of a federal amendment. No. 1st pursuing Rep. Sess., (1896).) (See dozens of states would the chorus. Ultimately, join Hall, (1936) The and Effect of the Seventeenth Amendment History 221-223, 512-528; (1906) The Election of Senators pp. Haynes, 108-109.) (See, These action both houses of pp. pleas spurred Congress. Ames, The Amendments to the Constitution of the United e.g., Proposed (1897) States the First of Its 61-62 During Century History [noting House of of a amendment as a to Representatives’ passage proposed response one]; state resolutions Rec. repeated legislative requesting Cong. amend, (1910) 7109-7112 Sen. Owen of Okla. proposed [introduction 1913, one].) a resolution from his state following legislature requesting By Const., (U.S. direct election of senators was a of the federal Constitution. part Amend.) 17th

State resolutions for a federal amendment calling congressionally proposed Amendment, also the Nineteenth which extended to preceded suffrage (O’Connor, (1996) women. the Women ’s Movement History Suffrage 657, 667.) 49 Vand. L.Rev. The same was true advance of the Twenty-first Amendment, 285.) Prohibition. 1931 Conn. Pub. Acts repealing (E.g.,

State for constitutional fails far more than it succeeds. pressure change resolutions, Over the state have submitted thousands of but years, legislatures has a few dozen amendments. For state Congress proposed only example, disturbed the United States Court’s legislatures Supreme reapportionment decisions10 with a mixture of article V convention calls and state responded resolutions itself a federal amendment requesting Congress propose to the states broad over Ten states asked for restoring apportionment. amendment, while one dozen exercised their own Congress propose (1996) to call for a convention. & Authentic Acts (Kyvig, Explicit 374 & fn. no amendment from and an Ultimately, emerged Congress, insufficient number of convention calls were submitted to a national require convention.

As the successful Seventeenth Amendment movement and unsuccess demonstrate, ful movement the use of a direct convention reapportionment call and an an amendment are not entreaty Congress propose mutually exclusive Just as different state elect one route approaches. legislatures may Assembly 632, (1964) See Lucas v. Colorado Gen. 377 U.S. 713 L.Ed.2d 84 S.Ct. [12 620, (1964) 1459]; 1449]; Roman v. Sincock 377 U.S. 695 L.Ed.2d 84 S.Ct. Davis v. Mann [12 609, Maryland (1964) (1964) 1441]; 377 U.S. 678 L.Ed.2d 84 S.Ct. Committee v. Tawes [12 WMCA, (1964) 1429]; 377 U.S. 656 L.Ed.2d 84 S.Ct. Inc. v. 377 U.S. 633 [12 Lomenzo Reynolds (1964) 1418]; L.Ed.2d 84 S.Ct. v. Sims 377 U.S. 533 L.Ed.2d [12 [12 1362]; 84 S.Ct. Baker v. Carr 369 U.S. 186 L.Ed.2d 82 S.Ct. 691]. or the other to constitutional so a state change, particular legislature may a multifront and take both For ex- prefer approach paths simultaneously. 1935, in in June with the the throes of the ample, country Depression, concluded reform of federal securities and bonds taxation to ensure stock- and bondholders bore a share of the costs of wealthy greater was needed. The a resolution government urgently Legislature passed calling on a federal amendment tax for Congress propose limiting exemptions (Sen. (1935 these forms of Joint Res. No. Stats. 1935 property. Reg. weeks, Sess.) res. ch. Within it also used its direct federal (Sen. to call for a constitutional convention on the same Joint subject. Sess.) 2712-2713.) (1935 Res. No. Stats. 1935 res. ch. Reg. pp. Questions III. The Use to Facilitate the Exercise Advisory Article V-related Powers Text and tradition thus establish a state firmly legislature’s power for and federal constitutional a petition participate change, by proposing amendment, national convention for the consideration of an a by issuing amendment, resolution on to itself an calling Congress propose by deciding whether to amendments that from either of these ratify emerge paths, rules the event ratification is to be state convention. establishing ground If a state can exercise these that a can also legislature powers, legislature avail itself of the wisdom or desir implied investigative powers explore (See one or another course of action follows. ability choosing necessarily Riley, 90-91; Battelle, Parker v. 18 Cal.2d at In re 207 Cal. supra, 240-241.) at pp. noted, however,

As the state law is not unbounded. investigative power must be tethered to the exercise of other established Any investigation and the method chosen instance must be legislative powers, particular reasonable. The issue we face is whether the to the Legislature may pose electorate a for a single advisory question concerning People’s support federal constitutional amendment. Its resolution on the answer to two depends First, abstract, does the text or structure of subquestions. anything the state or federal Constitutions from an preclude posing when its own article V advisory question exercising authority entreating other bodies with article V and fellow state authority (Congress legislatures) Second, bar, if to act?11 there is no is the before us specific question today, 49, a reasonable exercise of that state Proposition implied investigative power? Proposition solely Because 49 relates to the exercise of in connection with article

V, whether, here, day support powers implicated we reserve for another of other not permissible legislative investigation. ballot measure would be a means of

505 A. The Role in a Consultation with Republic Representative of the People The texts of the state and federal Constitutions are silent on the issue is, discussed, we face. The state as we have an inherent investigative power but of a The state Constitution does not otherwise implicit power legislature. address the matter. The federal Constitution is even more terse: “As a clearly terms, rule the Constitution to deal with speaks general leaving Congress matters of detail as the interests and conditions subsidiary public changing Gloss, (Dillon and Article V is no to the rule.” v. may require; exception supra, 376, omitted.) 256 U.S. at fn. what state do p. Regarding legislatures may roles, when out their article V the federal Constitution leaves the carrying of the and their limits unarticulated. scope powers As for our decisions the constitutional precedent, past elucidating that we have not been called principles govern legislative investigations upon to determine whether the include the enactment of a investigative power may (Cf. statute measure on the statewide ballot. Parker v. placing 18 Cal.2d at 91 formation of an Riley, supra, p. [approving independent Battelle, commission]; 241 In re 207 Cal. at formation p. [approving committees]; of Ex D. O. 29 Cal. at investigative parte McCarthy, supra, witnesses].) 404 of [approving summoning Where neither text nor affords sometimes a precedent guidance, (New of is worth a volume of YorkTrust Co. v. Eisner “page history logic.” 963, 41 256 U.S. L.Ed. S.Ct. of (maj. opn. 506] Holmes, J.); 1975) (N.D.Ill. see v. Blair 1303-1307 Dyer F.Supp. to historical to understand the of state [looking practice proper scope amendments].) in connection with federal constitutional The legislative power of consultation with the and history legislative people, particular historical use of to inform federal advisory questions judgments concerning matters, constitutional is here. illuminating Gordon, noted British and Thomas Whig republican writing Cato, as declared: difference between free and

pseudononymously “[T]he here, former, enslaved countries lies their principally magistrates latter, must consult the voice and interest of the but people; private will, interest, and are the sole end and motives of pleasure governors, Gordon, edit., (1 their administration.” Trenchard & Cato’s Letters (Hamowy 1995) 1721) No. 38 (July Right Capacity People Judge of Letters).)12 (Gordon) (Cato’s Government The seeds of a practice Letters, republican critiques tyranny liberty Cato’s a series of and defenses of speech, broadly heavily among founding free were circulated and influential this nation’s consultation, the solicitation of the views to inform nonbinding people’s matters, in in on were the legislative judgments significant planted England least, 17th at the focused as much on the of century. Initially, practice shaping as its solicitation: “With the of sover- public opinion development popular 1640s, in the various members of Parliament communications eignty opened with constituents to for measures directed gain popular support Parliamentary 220.) (1988) the the 18th against King.” (Morgan, Inventing People p. By however, found; in a more interest views could be century, genuine popular members of the House of Commons “often” would action “until delay they (Gibbons, had consulted their constituents.” Ideas of Political Representation 25; Letters, [“[Ojur (1914) Parliament 1651-1832 see Cato’s at p. p. instances, records afford where the House of Commons have declined till had into the entering upon question importance, they gone country, and consulted their So far were from principals, people: they thinking men had no to meddle with private right government.”].) Consultation took root the colonies and soon became “much shortly (Reid, more an American than a British one.” The technique Concept 86.) (1989) of the American Revolution New Representation Age p. Massachusetts, flourished; York and consultation it was resorted occasionally to even other colonies such as that did not have an established Pennsylvania (Id. town structure which to assess the will. at meeting through popular 86-95.) When the Continental was faced with its most momen pp. Congress tous decision it did not act but instead spring unilaterally, its vote on three weeks ‘to “delayed Independence by give Oppertunity Colonies, to the from those which had not Delegates yet given Authority [s/c] ” Measure, (Maier, this decisive to consult their Constituents.’ adopt (1997) American the Declaration of Scripture: Making Independence p. Kruman, a letter from see [quoting Maryland’s congressional representatives]; 77.) (1997) Between & desired Authority Liberty p. Maryland’s delegates “ ‘the fair and uninfluenced Sense of the on and asked People’ Independence” “ their colonial to ‘endeavour to collect the at assembly opinion people ” Massachusetts; 67.) (Maier, in some Manner or other.’ at So too large p. there, the colonial asked town to hold a assembly every special meeting, debate whether to declare and advise its where independence, representatives (Id. 59; Luce, 570; (1930) its stood. at see p. Legislative Principles p. Reid, 102.) And New York’s assembly sought popular (Kruman, instruction whether to draft a colonial constitution. concerning 77.) Between & Pre-constitutional America Authority Liberty, supra, could, thus had an established tradition whereby people’s representatives chose, if so solicit the views to inform momentous decisions. they people’s 53-55; Rossiter, (1968) generation. (Bailyn, Origins pp. The of American Politics Seedtime of 141-142, Republic: Origin Liberty of the American Tradition of Political

507 The framers of the federal Constitution likewise accorded the people’s 22, (See views a foundational role. The Federalist No. at 146 supra, p. (Hamilton) consent of the is the fountain of all people “pure original [the 49, (Madison) The Federalist No. at 339 legitimate authority”]; supra, p. [“the Amendment, are the fountain of The First people only legitimate power”].) James Madison ensured “the Virginia Representative explained, people may them, therefore address their advise publicly representatives[,] may privately or declare their sentiments to the whole all these by petition body; ways 1789) (1 (1st communicate their will.” Annals of they may Cong. Cong. views, wrote, 766.) These Alexander Hamilton should matter p. popular (up demands, to a “The that the deliberate sense of point): republican principle should the conduct of those to whom entrust the community govern they affairs; of their but it does not management require unqualified complai- sance to sudden breese of or to transient which every passion, every impulse men, receive from the arts of who flatter their people may prejudices (The (Hamilton).) their interests.” Federalist No. at betray supra, p. The of Thomas Gordon as Cato that a free nation opinion representatives “ ” could and should ‘consult the Voice and Interest of the was one People’ (1 could with.” The Founder’s Constitution agree “[a]ll [the Founders] edits., 1987) 41.) (Kurland & Lerner The p. founding generation gave proof Constitution, of their when submitted the not to the state principles they Const., VII; (U.S. but to conventions for ratification. art. legislatures, popular (Madison) see The Federalist No. supra, express authority [“The Constitution.”]; of the alone could due to the Remarks of people give validity Mason, Col. Records of the Federal Convention of Constitution must be submitted with whom all people [the “[t]o them”].) remains that has not been the Constitutions derived from given up this does not delineate the means Although history clearly permissible consultation, of formal it reflects an implicit understanding republican on funda principles generally permit representatives inquire people mental matters. Consistent with that for more than a understanding, century, states have means at issue here—an ballot employed particular inform decisions federal constitutional matters. question—to concerning Amendment, Until of the Seventeenth the federal Constitution adoption Const., I, (See vested the selection of senators state U.S. art. legislatures. states, the late 19th the Midwest and By century many especially § West, (1 were inclined to transfer that to the themselves. The Senate of the United States: Its and Practice Haynes, History 96-104; Rossum, and the Seventeenth Amendment pp. California edits., 2004) 83-85.) (Janiskee California & Republic Masugi our on the next election ballot an Legislature placed year’s general “ for, the voters whether were ‘the election question, asking they against, ” of United States Senators the direct vote of the with the results by people,’ President, (Stats. to be submitted to the state the Union. Congress, every 1891, 48, landslide; 46.) ch. The result was a better than 93 p. percent 84; Hall, (Rossum, those ballots favored direct election. at casting p. Amendment, 230.) and Effect of the Seventeenth at So History supra, p. informed, the that California’s senators and Legislature requested representa- tives a constitutional amendment for the direct election of propose providing 7, 15, Sess.) (Assem. (1893 senators. Joint Res. No. Stats. 1893 res. ch. Reg. 620.) p.

Nevada 1893 and Illinois 1902 followed suit. The Nevada Legislature, it as that the wishes of the of this State viewing “expedient upon of the election of United States Senators should be subject unmistakably 21-22), (1893 Nev. Stat. on the ballot an expressed” placed advisory question amendment) and forwarded the results to one favor of (nearly eight 22; (id., and other states’ Governors The Election of Congress p. Haynes, Senators, 106, 110). at Illinois’s supra, pp. Legislature sought general “ constitutional whether ‘the next General Assem- guidance, asking polity take the under Article 5 of the Constitution of the bly necessary steps, [should] States, United about the election of United States Senators bring ” 110, 10.) direct vote of the at fn. Guidance it people?’ (Haynes, p. got; by six-to-one voters favored efforts to about a nearly margin, legislative bring advised, 106.) (Id. federal amendment. at So the next the Illinois p. year (See for a national constitutional convention. id. at Legislature petitioned p. Amendment,

Prior to ratification of the Seventeenth our turned to the mechanism to obtain advice on whom to select again advisory question for the Senate under its federal to choose senators. not-yet-superseded 1909, 405, 2, (Stats. ch. for an vote for the p. [providing “advisory § the sentiment of the voters” senatorial purpose ascertaining concerning 1, candidates]; Stats. ch. 704-705 that future pp. [directing § Sen., election ballots include the names of candidates for with general party Here, results of the referenda to be forwarded to the Leg.].) California was the lead of the other that saw fit following many legislatures to inform their exercise of their federal to choose senators through course, in Nebraska was the first state to this advisory plebiscites. adopt Acts, 210); in & Authentic at the Nevada (Kyvig, Explicit supra, identical to what Legislature adopted advisory procedure essentially 86-87); (1899 California later enacted Nev. Stat. more than half 210; of all states had some form of advisory plebiscite place (Kyvig, Senators, 140-150). see The Election of generally Haynes, 1930s, In the 1920s and as discontent over Prohibition state grew, many submitted to the whether the legislatures people advisory questions asking Amendment should be The Rhode Island Eighteenth repealed. declared it and desirable that each elector should be “proper qualified to exercise his constitutional his on this permitted right register opinion broad social and economic and directed that the results be sent to question” 63-64.) (1930 R.I. Acts & Resolves of Rhode Island Congress. favored, one, (Assn. more than three to constitutional change. Against Amendment, 34.) (1932) Prohibition 32 Reasons for The results Repeal p. were the same where the solicited the electorate’s Wyoming, legislature views and ordered the of state to transmit the results to secretary Congress 249); (1931 Sess. Laws better than 70 favored a constitutional Wyo. percent (Ann. amendment of the President of the Association Rep. Against 12). (1933) Prohibition Amendment for the Year 1932 Similar votes took p. (See, across the 1931 Conn. Pub. Acts 285-286 place country. e.g., [petition- Amend., for of the 18th to the electorate ing Cong, repeal subject amendment]; vote its desire for an 1932 La. Acts 767 advisory signaling to an vote a resolution to call a [submitting advisory joint petitioning Cong, Prohibition]; constitutional convention to 1925 Nev. Stats. repeal modify for a constitutional convention the wake of a landslide [calling vote]; 32 Reasons for at pro-repeal advisory Repeal, [cataloguing President, votes]; results of these and other Ann. advisory Rep. anon, [same].) 9-12 followed and ratified Repeal proposed by Congress Const., Amend.) (U.S. the end of 1933. 21st More the Llorida on the ballot two recently, Legislature placed whether the federal constitutional amend questions asking people supported (1972 ments to forced school Lla. Laws prohibit busing permit prayer. 114-115.) inAnd the Florida for the Legislature applied Congress of a constitutional convention to a balanced amend calling propose budget (Lla. (2010); ment Sen. Conc. Res. No. 10 see 160 Rec. S5563-S5564 Cong. 11, 2014)) ed. on a election (daily Sept. again placed subsequent general ballot a whether the federal Constitution nonbinding advisory question asking should “be amended to a balanced federal without require budget raising Sess.) 1). (Lla. (2010 Bill taxes?” Sen. No. 2742 Reg. § State have also seen fit to resort to when legislatures advisory questions 1920s, whether to amendment. debating ratify proposed Congress sent to the states an amendment United States Court overturning Supreme (H.J.Res. decisions over child labor. limiting Congress’s regulatory power 670; (1924) No. 68th 1st Sess. 43 Stat. see Child Labor Tax Case Cong., 449]; 259 U.S. 20 L.Ed. S.Ct. Hammer v. Dagenhart [66 529].) (1918) 247 U.S. 251 L.Ed. 38 S.Ct. Before acting, Massachusetts submitted the of ratification to an legislature question Acts, vote of the & Authentic people. (Kyvig, Explicit 1970s, In the the Nevada had before it the proposed Equal Rights Amendment; earlier, as had Massachusetts a it turned first to the half-century electorate, voters whether the Nevada asking they ‘“recommend[ed] 322; (1977 amendment. Nev. Stat. see legislature ratify” proposed 1385, 225, (1978) Kimble v. Swackhamer 439 U.S. L.Ed.2d 99 S.Ct. [58 51].) the Idaho a rule that it would Contemporaneously, Legislature adopted act on federal amendments after the results of a proposed only obtaining (Idaho vote on amendment. Code former nonbinding popular any proposed 34-2217, Laws, 1.) 1995 Idaho Sess. ch. When the repealed by § § Amendment, salaries, was for Twenty-seventh regulating congressional up and, consideration the matter to a vote after the legislature put it, 466; electorate ratified the amendment. strongly supported (Kyvig, Bernstein, The Wakes: The Sleeper History Legacy Twenty-seventh 497, 539.) (1992) Amendment 61 Fordham L.Rev. contested,

When these actions have been California’s for upheld. provision an senatorial vote on election ballots was chal including advisory primary as rule because it was as of an lenged violating one-subject adopted part (Socialist act also not regulating binding, merely advisory, primary voting. Const., IV, 181]; (1909) v. Uhl 155 Cal. P. see Cal. art. Party [103 § rule].) In the course of this court held: [one-subject rejecting challenge, “There is the constitution—either the amendment of nothing [former] II, section 2½ of article or other any provision—which prohibits legisla ture from at a for an of a choice as to a providing primary expression candidate for United States senator. It is within the general legislative power so, to do and that it has for this vote at a election provided advisory primary is for the of convenience” and to the purpose sufficiently germane subject (Socialist elections. We considered “whether primary Party, in connection with laws such legislation primary granting right expression of a choice is the constitutional under prohibited by provision particularly rule], consideration to the other” and concluded [relating one-subject any (Ibid., added.) it was not. italics

The Nevada Court a federal constitutional Supreme rejected challenge vote, the Nevada Amendment that the Equal Rights explaining was not “a limitation on violative of article V of the question legislative power federal constitution” but instead a means which to “simply specifie[d] assist the whether to consent or not to consent to the legislature proposed (Kimble (1978) amendment.” v. Swackhamer 94 Nev. 600 P.2d [584 162-163].) Then Justice as circuit Rehnquist, acting justice, rejected decision, for reversal of this that the application summary agreeing no article V “Under the Nevada statute question posed problem: question, ratification will still on the vote of the Nevada as depend Legislature, I Art. V. would be most disinclined to read provided by Congress Hawke, 221,]

either U.S. or Leser Garnett 258 U.S. 130 supra, [v. 217]], L.Ed. S.Ct. or Art. V as out communication between ruling constituents.[13]If the members of the and their each member of legislature in the Nevada is free to obtain the views of constituents the I district which he can see no constitutional obstacle to legislative represents, Swackhamer, (Kimble a referendum of this sort.” v. nonbinding, advisory minimum, 1387-1388.) 439 U.S. at Kimble at a “there supra, pp. suggests, are at least some circumstances which the submission of a ballot proposi tion to an amendment to the federal Constitution will not violate relating Article V” and establishes that article V does “not a completely foreclose[] state’s electorate from some to the amendment contributing input process.” Jones, 1058; v. 20 Cal.4th at see American Federation (Bramberg supra, Eu, Labor v. 36 Cal.3d at initiative supra, popular proposing [a issues].) fashion a federal amendment would raise no art. V nonbinding the Idaho General considered the Attorney constitutionality then extant Idaho that decisions whether to federal amend- requirement ratify (See ments be deferred until after a referendum. Idaho nonbinding advisory 34-2217, Laws, 227, 1.) Code former 1995 Idaho Sess. ch. repealed by § § General did not doubt that state could Attorney legislatures voluntarily submit federal constitutional nonbinding advisory questions concerning cases; amendments to the electorate individual could choose legislature first, to follow a “referendum decision second” rule. The legislative only with the vote law involved its to constrain potential problem attempt is, future that while its discretion could decide legislatures; any legislature ratification, before on the current state pose advisory question voting could not mandate that future be to do so. legislature legislatures required (1986).) Idaho No. 86-9 (Ops. Atty.Gen. Questions

B. and State Constitutional Limits Advisory in California and elsewhere thus have established a Legislatures tradition of ballot measures to determine the will of the using advisory people on to amendments to the federal Constitution. While questions pertaining “ custom, continued, no matter how cannot create a ‘usage long right ” that otherwise it does not Int. legislature possess’ (Special Assembly Southard, 508-509), Com. v. 13 Cal.2d at we see no evidence the supra, drafters of the California Constitution intended to of a deprive tool other state have used to ensure are legislatures long they truly speaking on behalf of their states the federal constitutional amendment process. Supreme supra, pages The United States Court in Hawke v. No. 253 U.S. at Smith. 1. attempt subject legislature’s respecting 228-230 invalidated an decision ratification to a doing authority state law referendum because so would contradict article V’s allocation of Garnett, legislatures page Supreme themselves. In Leser v. 258 U.S. at legislature’s ratifying purely Court reaffirmed that a state actions in amendments are federal in any sought imposed by character and limitations to be of a State.” “transcendf] Nevertheless, Howard Jarvis offers a series of for arguments why structure and of various of our state Constitution implications provisions bar the from as a means of necessarily Legislature using advisory question the will of the with to federal constitutional investigating people respect (1) amendments. We consider four contentions: the Constitution separate committee; (2) confines the means of to investigation investigation by Constitution confines the access to the ballot to Legislature’s specifically (3) enumerated circumstances that do not include advisory questions; Constitution from on the ballot a measure that does prohibits anyone placing law; (4) not enact and the Constitution allocates to the legislative power and the a clear lines of accountabil- Legislature way preserves and devices such as that would blur ity implicitly prohibits advisory questions merit; those lines. None has no constitutional or set of provision provisions the use of ballot measures federal constitutional prohibits concerning amendments.

1. The Committees Clause Howard Jarvis that the to is limited California argues power investigate by Constitution, IV, article section which authorizes com- investigations by mittee. Under that or either house provision, Legislature may by ‘“[t]he resolution for the selection of committees for the conduct provide necessary business, of its committees to ascertain facts and make recommen- including dations to the on a within the control.” Legislature subject scope legislative (Ibid.) From this Howard Jarvis reasons that the language, Legislature may ascertain facts committee and not other only through investigations, by any means. This of the committees clause. argument misapprehends import Const., IV, (see

Prior to the clause’s Cal. art. former adoption § initiative, 5, 1940)), (Nov. added Gen. Elec. the extent of the Legislature’s to act less than all of the members of one house was the ability through 313]; (See v. 13 Cal.2d 513 P.2d subject dispute. Swing Riley Southard, 497; Battelle, Int. Com. v. 13 Cal.2d In re Special Assembly supra, Battelle, 227.) In 207 Cal. this court considered but rejected committee, that the could not argument investigate by explaining that the Constitution a to and committee implied power investigate investiga- 240-244.) (Battelle, tions were a exertion of that at permissible power. pp. we construed the state Constitution as a Special Assembly, again implying committee. investigate, including power investigate by (Special held, however, 502-504.) We that the was not a Assembly, pp. sessions, that it ceased to exist between that its continuing body, express time, ceased to exist at the same that the powers accordingly implied 504-507.) (Id. died too. an interim investigate Consequently, committee established to conduct after Assembly investigations legis- lative to the next session of the was adjournment report (Id. 509; unconstitutional. see v. at 517-520 p. Swing Riley, [extending the same conclusion to a committee created resolution of both by joint houses].)

At the next election after general Special Assembly, Legislature placed on the ballot a constitutional amendment making explicit power and act committee and that that investigate overturning holdings A did not extend between sessions.14 ballot of legislative argument support Battelle, amendment from In re 207 Cal. at 241: quoted directly supra, page “In ‘the of wise and laws the of of preparation timely necessity investigation some sort must exist as an incident and to the indispensable auxiliary proper ” Guide, (Voter exercise of Information legislative power.’ supra, argument 2, 24.) in favor of Assem. Const. Amend. No. by Assemblymember Voigt p. that, Another the inherent argument explained although investigate committee had been recent court decision has always recognized, “[a] held, however, this our State is without constitutional practice (Id., Cronin favor of Assem. authority.” argument by Assemblymember 2, Const. Amend. No. The p. [implicitly referencing Special Assembly].) amendment’s was to the constitutional purpose supply, explicitly, authority Assembly Guide, (Voter had found Information Special lacking. we read the text of the committees clause as

Accordingly, language of not restriction. The ballot endorses extant expansion, argument support The amendment precedent establishing implied power investigation. removes doubt over whether the simply Legislature may investigate carry committee; out other functions also it does not necessary by way require henceforth to inform itself of facts on the need for bearing Constitution, action of committee. California article only by way Nothing IV, section constrains the from on placing advisory questions the ballot.

2. Access to the Ballot Legislative Various of the state Constitution authorize the provisions expressly Legis- lature to measures on the ballot for voter place approval. Legislature may initiative, if amend or a statute voter but repeal adopted by generally only enacted, Constitution, IV, specified As California article former section 37 that “[t]he creating any may during resolution such committee authorize it to act either sessions of the Guide, 5, (Voter (Nov. 1940) adjournment.” or after final Information Gen. Elec. 17, appen.) text of Assem. Const. Amend. No. When the state Constitution was revised location, IV, present and modernized in the committees clause was moved to its article later, years Legislature’s lengthy periods section 11. Six calendar was amended to eliminate sessions, adjournment language relating between and the to intersession committees was voters, (See (Nov. 1972).) superfluous. Prop. approved by deleted as as Gen. Elec. 514 (Cal.

amendment or is first submitted to and the electorate. repeal approved by Const., II, 10, (c).) art. subd. The authorize the issuance of Legislature may § bonds, but above a certain amount must be submitted to the voters for they (Id., XVI, art. the state approval. Finally, Legislature may propose § amendments, constitutional but such amendments must be submitted to the XVIII, 1, 4.) (Id., voters for art. approval. §§ alterius, the canon unius est exclusio Invoking interpretive expressio Howard Jarvis these three instances which achon argues specific legislative (See must be ratified the voters demonstrate no others are also permitted. dis. 583 that the conshtuhonal scheme opn., post, [arguing precludes canon, circumstances].) access to the ballot other Under the the legislative mention of some a text other matters not explicit things may imply 200, (In (2002) addressed are excluded. re J. W. 29 Cal.4th 209 similarly [126 897, 448, 363]; (1997) 57 P.3d Lake v. Reed 16 Cal.4th 466 Cal.Rptr.2d [65 860, 311].) 940 P.2d Cal.Rptr.2d Applied specific grants power, “ ‘ canon “an that no other than may support implied negahve; implication that it is to be exercised expressly granted power passes by grant; only ’ ” (1976) in the mode.” Alive v. 18 Cal.3d prescribed (Wildlife Chickering 190, 377, 537]; (1907) 196 553 P.2d see Wheeler v. Herbert 152 Cal.Rptr. [132 224, Cal. 237 P. the canon to [applying interpret scope [92 353] Const.].) under the state Legislature’s powers Here, however, the canon has no The unius inference applicahon. expressio arises when there is some reason to conclude an omission is the only product (Marx (2013) of intentional v. General Revenue 568 design. Corp. U.S. County 242, 253, 1166, _, _ [185 1175]; L.Ed.2d 133 S.Ct. Silverbrand v. 106, 595, (2009) Los 46 Cal.4th 126 205 P.3d Angeles Cal.Rptr.3d [92 1047].) The text must contain a list or specific facially comprehensive 149, (See (2003) treatment. Barnhart v. Coal Co. 537 U.S. 168 Peabody 653, L.Ed.2d 123 S.Ct. canon “has force when the items only [154 748] [the series,’ are members of an ‘associated expressed group justifying choice, inference that items not mentioned were excluded deliberate not inadvertence”]; (2002) Chevron U. S. A. Inc. v. 536 U.S. Echazabal 82, 122 L.Ed.2d S.Ct. canon a “series of terms from requires [153 2045] [the (2007) which an omission In re Sabrina H. bespeaks negative implication”]; 1403, 1411 canon “is Cal.App.4th Cal.Rptr.3d generally [57 863] [the statute, to a which contains a of items to which the applied specific listing code”].) statute not have to “an entire The applies” may any application Howard Jarvis relies on are both where provisions widely separated, they are codified and as to how and when were they adopted. provision to the electorate amendments to initiative allowing propose (See measures was the voters at the 1946 election. Cal. adopted by general Const., IV, 1b, 5, 1946); (Nov. art. former enacted Gen. Elec. by Prop. § v. 47 Cal.4th P.3d People Kelly Cal.Rptr.3d 186].) The for bond measures to be on the ballot provision providing placed Const., (Cal. was at the 1878-1879 Constitutional Convention. art. adopted XVI, 1.) The for the constitutional provision providing Legislature place § amendments on the ballot traces all the back to California’s first way X, (Cal. Constitution. Const. of art. these Nothing suggests § treatment, were intended as a conscious and such provisions comprehensive that one infer not were might powers explicitly conveyed intentionally omitted.

More Howard Jarvis’s rests on a fundamentally, argument misconception as to the nature of the constitutional it cites. Each involves not a provisions of but a limitation on occasion when grant authority legislative power—an voters, must turn to the where otherwise it would have been at to act without voter Whatever be said for the of liberty input. might logic from a few of the absence of some more inferring specific grants authority that cannot be turned on its head to infer from a few general authority, logic broader, limits on of a unstated specific legislative authority presence canon, limit on unius were we to it legislative authority. expressio apply here, would at most the inference that the three cited instances are an support exhaustive list of the circumstances which submission of a matter to a is The canon and the scattered Howard plebiscite mandatory. provisions us, Jarvis cites offer no at all on the actual before whether guidance question its discretion turn to the voters to ascertain their will may amendment to the federal Constitution. concerning possible

3. The Use the Ballot Nonlawmaking Purposes for In a related Howard Jarvis notes this court’s that closely argument, holding initiative on the ballot measures that enact law. people by may place only Eu, 694, 708-714; (American Federation Labor v. 36 Cal.3d at Const., II, 8, (a) see Cal. art. subd. initiative is the of the § [“The electors to statutes and amendments to the Constitution and to propose adopt this, them.”].) From Howard Jarvis reasons that the reject people’s initiative and referendum and the constitutional provisions mandating Const., II, (Cal. electoral review of actions art. particular 8-10; id., XVI, 1; id., XVIII, 1, 4) art. art. define an exhaustive list of §§ § §§ ballot, matters that be on the all involve the may placed they adoption law, and that the Constitution forbids ballot measures that do not accordingly enact laws.

This contention is a variation on the unius expressio argument just considered and It on the that these scattered rejected. depends assumption Constitution—i.e., provisions adding people’s right place initiatives and referenda on the ballot to the Legislature’s duty place certain matters on the ballot—define the exclusive list of matters the elector- ate vote on. But there is no reason to infer what may provisions governing ballot, on the and what the must on the people may put put ballot, limit the what the on wholly separate category, Legislature may put the ballot. unius est exclusio alterius has no force here. Expressio interpretive if,

Howard Jarvis and the dissent contend that under American Federation Eu, Labor v. 36 Cal.3d are limited to on the supra, people placing laws, ballot then the must be too. We that only proposed reject in as well. Our decision Eu defined limits on the initiative argument power, not limits on what the do or limits on the use of the Legislature might proper Indeed, ballot. we that the were explicitly recognized Legislature’s powers broader than those the initiative “Even under the most conveyed by power: however, liberal the reserved of initiative and referen interpretation, powers (Id. dum do not all actions of a encompass possible legislative body.” 708.) When the established the to it the p. people Legislature, they conveyed full breadth of their v. sovereign legislative powers. (Nougues Douglass, 69.) 1 Cal. at When the initiative p. they adopted power they Eu, (See restored to themselves a shared of that only piece power. There is the state Constitution as nothing incongruous reading allocating broader to the deliberative than to the powers body representing people Const., (See Such is the nature of a U.S. people directly. republic. generally IV, Browne, art. a form of [guaranteeing republican government]; Rep. § of the Debates Convention of Cal. on Formation of the State Const. 393-394 nature of the state [noting fundamentally republican Stockton, Constitution]; 1 Willis & Debates & Cal. Const. Proceedings, 1878-1879, Convention state Constitution establishes a implicitly [the form of republican government].)

Of course Eu of itself does not establish that the has the to ask an about a federal constitutional specific authority advisory question amendment where the lack the on people might opine unilaterally matter; issue, case, the same central to this was far afield from the rather, Eu. The is that Eu forbids this under- question point, nothing while the broader assured the standing, substantially powers Legislature by IV, the federal Constitution’s article V and the state Constitution’s article 1, in section contrast to the narrower restored to the powers people by II, latter section and the state Constitution’s article section it. support Nor, Liu, to the concern of our Justice contrary concurring colleague does that the about recognizing Legislature may pose advisory question constitutional matters restore to the constitu impermissibly people forbidden them. The state Constitution does not tionally prohibit box; fails, II, from on such at the ballot it article speaking questions simply Eu, in section as construed to authorize their so That doing unilaterally. when, not to sources of constitutional outside they may speak pursuant II, asked, article section are does not follow. they

4. Accountability Howard Jarvis the state Constitution contains an Finally, argues implicit structural barrier to the use of It asserts advisory questions by Legislature. enactment, new laws come into with no may being by legislative participation initiative, come into with no involve people, they may being by id., Const., II, 8; IV, 1), (Cal. in ment from the art. art. § § instance, each for a law is clear. on accountability given Advisory questions matters, contrast, would blur lines of legislative supposedly accountability of voters to evaluate their hamper ability appropriately representatives at the ballot box: should be held for a they responsible particular legislative electorate, action or not? pre-approved by matter, As an initial we note our is one which the system government lines of are blurred to some extent. a accountability inevitably representa- tive are to be to their democracy, legislators generally expected responsive If constituents. votes favor of a measure that representative legislative measure, tracks the results of an ballot a voter not be able to may if know the is his or her own conscience or instead is representative voting the views of a constituents. But following majority representative’s measure, even the absence of an will sometimes arise as questions to whether a vote on a matter is based on the representative’s particular individual views or instead reflects those of his or her representative’s constituents, as embodied or other sentiment. polls gauges public

Moreover, our state Constitution to the “the guarantees right Const., I, 3, (Cal. (a).) to instruct their art. subd. representatives.” Although § this court has not had occasion to delineate the bounds of that its right, very existence is telling.

Instructions are a borrowed from were practice England. They employed in the colonies as a formal means for the to communi frequently represented Kruman, (See cate their views to Between Author representatives. generally 76-81; Wood, & The Creation of the American ity Liberty, supra, pp. 189-190; Terranova, (1998) 1776-1787 The Constitutional Republic Life Instructions in America 84 N.Y.U. L.Rev. Legislative 1333-1339.) For states delivered instructions to their example, delegates connection with the issuance of the Declaration of Independence, during Confederation, of the Articles of and to deliberations at the 1787 period guide (Kobach, Constitutional Convention. “We the May People” Speak?: Role Constituent Instructions in the Constitution Forgotten Amending 1, 38-58.) (1999) 33 U.C. Davis L.Rev. Views varied as to their compulsory nature; while had taken the that English legislators increasingly position instructions were some Americans the colonial treated precatory, period 76-77; Terranova, 1333-1339; (Kruman, them as more at at binding. pp. pp. Kobach, 30-37.) A at to instruct was pp. right congressional representatives Amendment, as an addition to the draft First but foun- proposed ultimately instructions, dered on over the effect to be other uncertainty given among 760-776.) (1 concerns. Annals of at Cong., supra, pp. Constitution, Unlike the federal the state Constitution has codified a right Const, I, (See

to instruct since before statehood. Cal. art. 10§ [“The shall have the to assemble to consult for the people right freely together, common to instruct their and to good, representatives, petition for redress of Its into the state Constitution was grievances.”].) incorporation of the same fundamental debates seen at the federal accompanied by many level connection with the omission of the from the First Amend- right ment—Are Do representatives independent agents? they represent If constituents of their district or the entire a to instruct state/country? right were would instructions be the state convention granted, binding?—hut of, struck a balance favor rather than to instruct. ultimately against, right Browne, (See of the Debates Convention of Cal. on Formation of the Rep. Const., 42, 294-297.) State

That clouds to some extent the attribution of for right responsibility If actions. instructions are no account- representative given disobeyed, arises; has voted his or her con- ability problem science, plainly representative chooses, if and the electorate it the same may provide, response if met Edmund Burke.15 But acts a manner consistent representative instructions, with then observers ask whether the may reasonably representa- tive was to his or her choice or acting according personal simply following instructions. The constitutional to instruct their right representa- blurs, tives thus to some the lines of for degree, accountability representative actions. event,

In whatever the merits of the concern that any general ballot measures blur the concern is less accountability, significant context of a measure such as to federal constitutional Proposition relating 15 1774, commentary representation speech Burke offered a classic on the nature of in a Bristol, instructions, England. binding explaining to the electors of He denounced that while interest, opinions great ultimately representative’s duty constituent were of it was the to act not agent body acting as mere but as a member of a deliberative in the best interests of the whole. (Bresler, (1991) 362.) Rediscovering Right Legislators Eng. to Instruct 26 New L.Rev. independence by declining (Bogus, Rescuing Bristol rewarded Burke’s to reelect him. Burke 387, 405-408; Bresler, 72 Mo. L.Rev. amendment. amendment, for the ultimate action federal Responsibility sought, proposed California,

lies not with the or the but with people the members of with Congress, entity constitutionally charged proposing amendments. To the extent individual state must be accountable legislators amendment, for their role to an be for their steps leading they may judged votes on the earlier resolution a convention and on the bill seeking placing on the ballot. advisory question

C. Conclusion The federal Constitution is our nation’s fundamental charter and the source of its law. of the supreme Only supermajorities people’s representa (See tives and the several states can alter the course it sets for our art. country. more, V.) Over the last state have seen fit to resort to century legislatures the ballot box for on whether to federal guidance propose ratify potential constitutional amendments. This use of to inform the past advisory questions federal constitutional evidences a truth—a process larger recognition the course of particular appropriateness consulting polity exercising with to such foundational matters. independent judgment respect That truth draws its from “the of our strength animating principle Constitution that the themselves are the source of all the people originating (Arizona State v. powers government.” Independent Arizona 704, 729-730, U.S. _, _ [192 Comm’n L.Ed.2d Redistricting so, 2671].) If 135 S.Ct. that be there can be little with a complaint before constitutional to obtain from the legislature, pursuing change, seeking (The of the state “the deliberate sense of the Federalist people community.” Moreover, (Hamilton).) No. of the matter solemnity to be considered an solemn justifies obtaining popular input through equally vote, formal rather than a mere or other unofficial solicitation of opinion poll others) (and views. While Hamilton instructions many objected binding from the no similar constitutional attach to people, objections purely advisory votes. solicit and consider the views of the on Legislators may amendments, fundamental matters to federal constitutional while at pertaining the same time free to act after due delibera remaining ultimately differently tion with fellow members of their representative body. discretion, im broad when an under its

possesses conducting investigation state constitutional “to select the means within reasonable plied authority, (Parker bounds.” v. 18 Cal.2d at We conclude the Riley, supra, enactment of a statute on the ballot order to placing advisory question sentiment on a matter of federal constitutional dimension investigate popular falls within that discretion. Liu, we,

Our Justice concern that like the concurring colleague, expresses have rested for the here on the Legislature, authority advisory question rather than on the alone. investigative power plenary lawmaking power Liu., J., (Conc. He that the opn. post, argues lawmaking power coextensive, to enact statutes are and resort to other to power any power a statute would raise doubts about the nature of the justify plenary lawmaking action—statute, This line of confuses the form of power. argument legislative resolution, else—with the nature of the something underlying power justify the exercise of that ing action—lawmaking power, investigative power, else. be ratifying power, something Though lawmaking power may Const., IV, 8, (Cal. (b)), exercised statute art. subd. we have never only by § converse, held the statute be as an exercise of every may justified only When California the wave of states lawmaking power. joined enacting statutes conventions for the Amendment governing ratifying Twenty-first 501), (ante, its actions were not authorized its by general lawmaking alone, but to an article V powers pursuant implied power regulate for that event. Justice Liu likewise would procedures one-time-only justify laws, enactment of the statute here based not on the naked to make but on an article V albeit while restrictive implied power, adopting unduly of state Neither that nor ours understanding legislative powers. explanation doubt the nature of the places any plenary Legislature’s lawmaking power. Justice Liu also concern that the means of selected expresses investigation here is unlike the methods addressed cases. But expressly previous novelty alone is no basis for constitutional barrier where none imposing categorical Here, discussed, otherwise exists. as we have none does.

IV. The Nexus Between 49 and the Exercise Powers Proposition Related to Federal Constitutional Amendment concluded the use ballot Having Legislature may questions functions, facilitate the exercise of its article V we next consider whether the us, exercise, measure before is a reasonable not specific Proposition law, barred and determine the by any Legislature’s power investigate best course of action connection with a federal constitutional potential amendment. Howard Jarvis contends that because the has already convention, submitted to a call for a national no further can Congress purpose be served a ballot measure. We disagree. the connection between 49 and the evaluating Proposition Legis “

lature’s we are mindful of our limited role. ‘It is no small matter powers, for one branch of the to annul the formal exercise another and government latter, coordinate branch of committed to the and the courts should not annul, constitution, and must not as to the a statute contrary passed by unless it can be said of the statute that it Legislature, positively certainly ” (Methodist is to the constitution.’ Sacramento v. opposed Hosp. Saylor

521 685, 1, 161].) (1971) 5 Cal.3d 692 488 P.2d intendments Cal.Rptr. [97 “[A]ll ‘If favor the exercise of the there is doubt Legislature’s plenary authority: any case, in as to the to act the doubt should be Legislature’s power any given ” (Id. Nor, 691.) in in resolved favor of the action.’ at Legislature’s p. holding Constitution, actions to the will we up Legislature’s light inquire motives; into our review is confined to whether an underlying determining action itself is at odds with constitutional and San imperatives. (City County of 707, (1975) Francisco v. 13 Cal.3d 913 534 P.2d Cooper Cal.Rptr. [120 403]; (1975) Los v. Court 13 Cal.3d County Angeles Superior 495].) If 532 P.2d reasonable connection between the Cal.Rptr. any ballot measure and the article V-related is proposed Legislature’s powers discernable, it will suffice.16 and,

We conclude there is a sufficient nexus between at a Proposition minimum, the exercise of one of the amendment potential every Legislature’s For the of a state to call on for a powers. legislators collectively Congress amendment, convention, federal or to call for a national is one matter. For the state, millions, in of a to vote favor of an amendment people pursuing is another. The 1892 direct election of senators plebiscite concerning yielded to 7 favor of constitutional resounding percent percent majority (Rossum, and the Seventeenth Amendment The Califor- change. California 84.) nia at The could believe that a Republic, supra, p. Legislature rationally decisive result more with members of present day might carry weight when whether to or vote favor of an amend- Congress, deciding propose ment,17 and with other state their deliberations over whether to legislatures, Legislature’s power investigate carry The dissent concedes both the and to out article V that, (Dis. 585-587.) opn., post, functions. at But the dissent contends if allowed to submit advisory question, Legislature might power people’s power use that to interfere with the abuse, (Id. 585.) by submitting “competing p. of initiative rival measures.” For fear of such evidently impose showing any the dissent would on the the burden of the use of (Id. 588.) advisory question indispensable recognized powers. p. is to the exercise of these people’s We have held that the initiative does not extend to measures Eu, (American proposing change. constitutional Federation Labor v. 36 Cal.3d at matter, 694.) legislative inquiring A ballot measure about a federal constitutional such as we here, compete any proposition address would never or interfere with rival that the had authority, place under their initiative as construed in on the ballot. There is no Eu. depart understanding warrant to from the settled that the has discretion to choose investigation, having within reasonable bounds its means of without first to demonstrate no (See Riley, supra, alternative means exist. Parker v. 18 Cal.2d at 17Arguably, mounting proamendment wave of convention calls and state resolutions played finally capitulating joining a role in the United States Senate the House of Kobach, (See Representatives proposing Rethinking a direct election amendment. Article V. Term Limits and the Seventeenth and Nineteenth Amendments 103 Yale L.J. 1976-1980.) reasonably Congress could conclude the members of are not showings political popular support change. immune to for 522 convention,18 California’s call for a constitutional than the

join Legislature’s call alone. Election results also inform the decision might Legislature’s whether to its convention call with a resolution formally supplement joint amendment, to an as both methods of asking Congress propose just soliciting in amendment were the late 19th and 20th centuries employed early connection with senatorial selection and 1935 connection with tax (Ante, 502-504.) if reform. either or a national conven pp. Finally, Congress amendment, tion were to would inform the propose plebiscite Legisla (See (50th ture’s decision on ratification. Idaho Sen.J.Res. No. 101 1st Leg., 1989), 1989) Sess. 101 Rec. S7911 ed. Reg. reprinted Cong. (daily July Amend, vote].) the 27th solicitation of a [ratifying following popular Moreover, even a result at the ballot box could rejecting proposal afford material assistance to the how to exercise Legislature determining its article V-related has called for a powers. Although already convention, enacted, constitutional has it may repeal.” ‘“[w]hat Matosantos, 255; Assn. v. 53 Cal.4th at (California Redevelopment supra, p. Cranch) (1810) (6 see Fletcher v. Peck 10 U.S. 135 L.Ed. 162] [“one is act which a former was legislature competent repeal any legislature the text of article V establishes an intent to competent pass”].) Nothing from this fundamental about the nature of depart understanding legislative make, bodies and to afford and state Congress legislatures only withdraw, Indeed, but never to of the amendment proposals. logic process the Article establishes to the Convention calls take urges strongly contrary. effect when a two-thirds of the have only supermajority, legislatures, joined Ain. national consensus is a foundational To allow the necessity. making calls, but not their under orders to subsequent negation, might place Congress states, call a convention when far fewer not even a perhaps majority, static; favored amendment. It follows that convention calls are not presently be, been, can and as a matter of historical have they practice frequently Sess.), (See, (1989 rescinded. Nev. Assem. Res. No. 157 e.g., Reg. reprinted 13, 1989) in Rec. S7911 ed. convention Cong. (daily July [rescinding Acts, call]; & Authentic at N.C. and Kyvig, Explicit supra, [noting Paulsen, calls]; A Okla. rescissions of convention General Article Theory of V: The Constitutional Lessons Amendment Twenty-seventh Yale L.J. 765-789 both convention calls and [cataloguing state-by-state convention; their The has called for a national it repeals].) might, Legislature’s pending The California convention call is without force until 33 other (See V.) legislatures join Pennsylvania’s Legislature in. art. Just as once coordinated a campaign requisite support to marshal the number of convention calls in of direct election of Amendment, 223-225; (Hall, History supra, pp. senators and Effect of the Seventeenth at Senators, 122-125, 275-276; Haynes, supra, Kyvig, Explicit The Election of & Acts, 210), Legislature may steps persuading Authentic so our take directed at legislatures meaningful. other in order to make its own call sober and mature reflection informed at the upon by popular disapproval box, ballot reconsider and rescind as unwise that resolution. Illustrative of the relevance an vote can have even after a advisory has acted is the case of the Massachusetts 1924-1925 legislature legislature’s of heart on the of a child labor amendment. change question Massachusetts was those states for submission of among petitioning Congress a constitutional amendment to the states to overturn United States Supreme Court decisions over child labor. How- limiting Congress’s regulatory power ever, amendment, when and an the state’s Congress complied proposed did not act but instead submitted the legislature immediately question ratification to a November 1924 vote of the advisory people. plebiscite demonstrated with the amendment widespread popular opposition, losing by account, more than three to one. those views into Taking legislature reversed its from the before and declined to the amend- support year ratify Acts, too, 259-260.) ment. & Authentic So an (Kyvig, Explicit vote whether to with may guide legislature deciding persist obtain, for, efforts to or rescind a call a national convention or congressio- federal amendment. nally proposed we conclude 49 is a reasonable and lawful

Accordingly, Proposition means of of its article V-related assisting discharge functions. Howard Jarvis has identified no constitutional obstacle. Proposition 49’s on a statewide ballot be as an exercise of the placement may upheld under the California Constitution to Legislature’s implied power investigate and determine the best course of action connection with a federal potential constitutional amendment.

Disposition cause, We the order to show Howard Jarvis’s for a discharge deny petition mandate, writ of and vacate our ordered peremptory previously stay. J., J., Cuéllar, J., J., C. concurred. Cantil-Sakauye, Corrigan, Kruger, observes, CANTIL-SAKAUYE, J., I C. dis- Concurring.—As majority measure, sented from this court’s 2014 order August removing 49, from California’s November 2014 election designated Proposition general ballot. vote was based on conclusion that had failed to My my petitioners make a sufficient of the measure to showing invalidity challenged warrant it from the ballot. removing

The court’s arrived at full oral opinion, following briefing, argument, deliberation, extensive concludes that the exercised its Legislature properly the statute that measure to a vote of authority enacting submitting advisory the statewide electorate. The decision the enactment as upholds Legislature’s a means of the permissible investigating policy options regarding Legisla- ture’s exercise of under article V of the federal Constitution authority amendment to the federal Constitution. the concerning possible process I the the of with the majority rejects contrary arguments petitioners. agree that, consideration, conclusion after full the measure is majority’s challenged I valid and that fail. have the petitioners’ objections Accordingly, signed majority opinion.

I write to avoid or that separately any misunderstanding implication authorized ballot measures are con- legislatively advisory permissible only the narrow universe of matters to the role under cerning relating Legislature’s V). (sometimes, I article V of the federal Constitution article As will explain, ballot has been legislative authority pose advisory questions long properly our own of numerous other employed—by Legislature, by legislatures states, (such and local bodies as boards of legislative county supervisors councils) and California and the nation—to obtain the views city throughout of the voters all manner of within a concerning subjects reasonably legisla- tive to act. decision should be viewed as body’s authority Nothing today’s into of all of statewide and local calling question validity types advisory measures, ballot even those unrelated to amendment completely any proposed to the federal Constitution.

Before and addressing legal principles precedent supporting Legis- lature’s to submit measures to a vote of the general authority advisory people, it is useful to review some detail the historical and recent long-standing initiated ballot measures practice demonstrating legislatively advisory have been used a wide regularly extensively concerning variety both within California and nationwide. This considerable use of subjects ballot measures not be as well known within the may legal be, as it should but this community among general public perhaps is mind when the of the practice important keep question permissible ballot measures is considered. scope Legislative Advisory Ballot Measures

I. Use General Any Nationwide, with California Unconnected

Article Role or Related Issue V A. Seven measures submitted to prior advisory policy California’s statewide electorate (m) (Stats. As section subdivision statute ch. challenged observes, 175) itself ballot measures views seeking nonbinding advisory in in of the voters have been used this state. On seven past prior occasions the has submitted ballot measures to the advisory voters, statewide most of them unconnected to effort to amend the federal any And, review, Constitution. like the statute under when the currently Legisla- ture’s to issues over which the federal has questions pertained government control, ultimate the measures have directed that the ballot results be con- to veyed Congress. in The first ballot measure California—an reflection of its advisory ugly “ ”

times, the statewide voters whether were asking they ‘[f]or’ “ ” Chinese submitted to California voters ‘[algainst' immigration—was 1877, 5, 3), (Stats. in ch. on the p. appeared 1879, in statewide election ballot a few months after general September just the voters had state Constitution at a approved newly proposed special in election 1879. That measure to the one at May advisory required, similarly here, (Stats. issue that the result of the be to balloting conveyed Congress. 1877, 5, 2, 3, 3.) ch. p. §§

The next two ballot measures were to the statewide advisory presented in voters 1892. One article V role—it implicated Legislature’s sought electorate’s views whether the federal Constitution should be concerning was, later) (as amended it more than two decades for eventually provide direct election of United States senators. That measure advisory required, here, to the one at issue that the result of the be again similarly balloting 1891, 48, 3, 46.) (Stats. ch. The second conveyed Congress. p. advisory § in measure of that asked whether the to read and write year ability English 1891, 113, (Stats. should be a for the state. ch. requirement voting 704-705.) pp. (ante, 1909, 508),

As explained majority opinion p. again in 1911—both of the Seventeenth Amendment to the federal prior adoption states, Constitution—our like those numerous other asked Legislature, voters to their advice at the ballot box which candidate the give concerning 1909, 405, 2, (Stats. should as United States senator. ch. appoint § 691; 387, 1, Stats. ch. And Legislature posed § to the statewide electorate two ballot the use questions concerning 1125-1126.) (Stats. tax funds. ch. gasoline

B. Other states’ submission measures to their statewide electorates 1700s, from the late and with use the mid- Dating initially growing 1800s, the of other states have the advice of their legislatures sought statewide voters on all kinds of matters unconnected with article V issue any and within the from whether to yet legislature’s authority act—ranging banks, allow the establishment of to abolition of forced labor by prisoners, (Goldman, (1950) for women. The in America suffrage Advisory Referendum 303, Q. (hereafter 14 Pub. 305-308 Opinion Advisory Referendum) the use of measures colonial times and statewide [describing advisory Mass., Ala., Wis., Nev., Y.].1) ballot measures and N. 19th-century The use of such ballot measures has continued advisory nonbinding nationwide decades. For the Massachusetts intervening example, 1998, measures on the ballot from 1919 to Legislature put advisory the Wisconsin 20 such measures on the ballot between Legislature placed (Zimmerman, (2001) 1948 and 1995. The Referendum decades, on the most recent four measures Focusing only advisory wholly unconnected with article V role have been on the statewide ballot any placed 12 state all of which under constitutions similar to legislatures, operate California’s, in that none contains such any provision specifically authorizing action. These most recent of statewide ballot measures legislative examples have to the statewide voters the posed following policy questions addressing issues within the to act. myriad coming legislature’s authority Alaska: Should the an amendment to the state constitu- legislature propose tion the state from benefits to same-sex prohibiting providing employment workers? Should a of the Alaska Permanent Fund partners public portion be used to balance the state Should the revise the state’s budget? legislature a bonus for those 65 and older? annuity program by adopting longevity Should the a resolution before the voters an Legislature adopt placing amendment to the state constitution for sessions to calling regular legislative be 120 with the of a extension days long possibility 10-day upon majority vote?2 explained: advisory The author A 1797 Massachusetts ballot measure concerned whether to convention; advisory call a state constitutional an 1819 Alabama measure concerned whether constitution; ratify an amendment to the state an 1847 Wisconsin measure concerned state; measure, prohibit whether to allow or banks in the an 1879 Nevada like the similar above, immigration; California ballot measure mentioned concerned whether to ban Chinese by prisoners; 1883 New York measure concerned whether to abolish forced labor and another (The advisory suffrage Advisory Massachusetts ballot measure in 1895 concerned for women. 306-308.)

Referendum, supra, Opinion 14 Pub. atQ. 3, 2007) Advisory (Apr. partners public employees election on benefits for same-sex Laws, no, (2006 Sess.): Special according Alaska Sess. ch. 4th voters answered to data presented Ballotpedia (ballotpedia.com; on results of statewide elections described below and state); through reports particular fn. 23 are from the same source or from maintained Laws, ch.l, 1999) (1999 advisory (Sept. permanent Special election on fund Alaska Sess. 1st no; Sess.): longevity annuity option, general voters answered vote on election ballot (Nov. 1986), yes (Inter-university Measure No. 3: voters answered Consortium for Political and Research, 64); Primary pt. Social Referenda and Election Materials vote

527 Delaware: Do the voters favor the state to license various allowing charitable and conduct lotteries under certain condi- organizations sponsor tions? Do the voters favor state and controlled slot machines?3 regulated

Idaho: of the fact that the United States Court ruled that light Supreme the state’s term limits law does not to members of should apply Congress, that law continue to to state elective offices? Should the state maintain apply relief, tax taxes and previously adopted property reducing property protecting schools, for the sales tax at 6 funding public by keeping percent?4 Illinois: Should health insurance any plan provides prescription drug be to include birth control as of that coverage required prescription part $10 ? Should the state increase its minimum hour coverage wage per by certain date ? Should the Illinois Constitution be amended to that each require revenue, students, school district receive additional based on its number of $1 from an additional 3 tax on income than million?5 percent greater Massachusetts: Should be used to fund taxpayer money political campaigns for office? Should the commonwealth that radio and TV public require broadcast outlets free time to all candidates for give equal running public office? Should the commonwealth for change legal age consuming 21 alcohol from to 18? Should recitation of be authorized voluntary prayer the commonwealth’s schools?6 public 7, (Nov. 1978), (1978 legislative length, general Proposition on session election ballot No. 1 Laws, Sess.): yes.

Alaska Sess. ch. Sess. Law No. 2d voters answered 6, 1984, (Nov. election) (64 Advisory by organizations referendum on lotteries charitable 955): (Nov. targeted yes; advisory Del. Law voters of the four counties answered referendum 2, 1976, election) (60 1138): targeted on slot machines Del. Laws voters of the three counties answered no. 3, 1998, (Nov. election) (submitted Advisory ballot on whether to retain state term limits 6, 2006, 824): (Nov. yes; advisory 1998 Idaho Sess. Laws the voters answered ballot election) (submitted 36): retaining property on tax 2006 Idaho Sess. Laws the voters yes. answered required advisory public question The “Women’s Health Referendum Act” a statewide 4, 2014, Laws, (Nov. election) (2014 prescription drug coverage on birth control in Ill. Pub. Act 98-696, Assem.): yes; Wage 98th Gen. the voters answered the “Minimum Increase Referen 4, 2014, (Nov. election) advisory public question dum Act” submitted an on the same ballot Laws, 98-657, (2014 Assem.): yes; Ill. Pub. Act 98th Gen. the voters answered the “Tax for (Nov. advisory public question Education Referendum Act” submitted another statewide Laws, 98-794, election) (2014 $1 concerning tax on income over million Ill. Pub. Act Assem.): yes 98th Gen. the voters answered 5, 2002, (Nov. Legislative advisory question taxpayer funding political campaigns on for no; election). (2002 660): Question legislative advisory No. 3 Mass. Acts the voters answered 6, 1990, (Nov. election). Question question on television and radio time for candidates No. 6 (1989 732): yes; legislative advisory question Mass. Acts the voters answered on lower 7, 1972, (Nov. election). (1972 74): Question drinking age No. 8 Mass. Acts the voters 528

Nevada: Should the state the third to last October as a designate Friday new Nevada declared Day holiday, replacing holiday long Legisla- ture to fall on October 31?7 Should the state for schools

Oregon: change system funding public income, various a menu of ways specified options, concerning property, taxes, and sales four measures?8 presented separate advisory Vermont: Should the consider enactment of a legislature lottery supple- ment state revenues? Should the state hold a constitutional convention?9

Wisconsin: Should the death be enacted the state for cases penalty if first intentional homicide the conviction is involving degree supported by DNA evidence? Do the voters favor restrictions on or new forms gambling, or continuation of forms of as described gambling, existing gambling, vocational, five measures? Should local control over techni- separate advisory control, cal and adult education be to state with out of changed funding paid revenues, state tax instead of from local tax revenues? principally property Do the voters favor state aid to for accelerated water greater municipalities abatement facilities the issuance of bonds? Do the voters pollution through favor state of land for recreational expanding acquisition development the issuance of bonds ?10 purposes through 7, 1972, (Nov. election). yes; legislative advisory question prayer answered on in schools (1972 479): Question yes. No. 9 Mass. Acts the voters answered 7 3, 1998, (Nov. election). (1997 Question Day advisory question Nevada 4 Nev. Stat. 508): yes. the voters answered 8 15, system, advisory (May Modification of school finance ballot Measure No. 5A measure. 1990, ballot). companion advisory through statewide This and four Measure Nos. 5B measures. 5E, 2214, Oregon presented were authorized Laws and were on the ballot as a menu options. yes, they change system funding The voters answered wanted to the current for schools, they against proposed options doing K-12 but advised each of the four for so. 2, 1976, (Nov. election) (1976 372): lottery question State Vt. Acts & Resolves the voters 3, 1969, (June election) (1969 yes; question answered constitutional convention Vt. Acts & 202): Resolves the voters answered no. 7, 2006, (Nov. election) (2005 Question penalty advisory Death No. 1 Wis. Sess. Laws 1807; 5): yes. Regarding gambling Wis. Sen.J.Res. No. the voters answered measures 6, 1993, (1991 1783), April Wis. Sess. Laws all were submitted to state voters on the statewide ballot, Questions Question through concerning gambling as 5. casinos on excursion vessels, asked, you gambling “Do favor a law that would allow casinos on excursion vessels River, (the operating Mississippi Michigan Superior?” in this state on the Lake and Lake voters casinos, asked, no); Question concerning gambling you answered restriction of “Do favor a (the gambling constitutional amendment that would restrict casinos in this state?” voters asked, Question yes); concerning poker gambling, you answered video and video “Do favor (the poker gambling a law that would allow video and other forms of video in this state?” asked, no); Question concerning pari-mutuel betting, you voters answered on-track “Do state, horse, continuing pari-mutuel betting dog favor to allow on-track on races in this such as

529 decades, Less the same most recent four frequently during legislatures nationwide also have continued to exercise their traditional powers by views of the electorate not a law or seeking concerning, possible amendment, state constitutional but instead connected with the legislature’s to issue resolutions directed toward the federal authority policy government. For federal environmental issues have been the of advi- example, subject in at least four states. The North Carolina asked sory questions if voters were “for” or location of a radioactive waste they “against” facility state, in the and directed that the results of the ballot be shared with the President, Likewise, and other federal officials. Congress, Oregon Legis- lature asked: Should state officials continue to federal selection of challenges the state to house nuclear waste The Wisconsin high-level repositories? asked: Do voters construction of a national or support regional radioactive waste site the state? The Massachusetts high-level disposal asked: “Shall the Commonwealth the President . . . and . . . urge to enact a national acid rain reductions Congress program” requiring specific in total national sulfur dioxide and allocate the costs of reductions equitably the states?11 among the federal

Concerning government’s military policies, legislature Massachusetts 1970 its voters “the future course of action polled regarding Vietnam,” the United States whether withdrawal asking military victory, schedule,” to a or immediate withdrawal was pursuant “planned preferable.12 Thereafter, in 1982 the of three states—New Rhode legislatures Jersey, (the Question yes); concerning and snowmobile races?” voters answered the state- asked, (the operated lottery, you continuing state-operated lottery?” “Do favor to allow the yes). voters answered 1, 1969, posed April The other Wisconsin referenda mentioned in the text above were at the (1969 question funding election: to the of state control and of vocational education Wis. Sess. no; 1518), (1969 question pollution Laws the voters answered to the of water control bonds 1518), (1969 yes; question Wis. Sess. Laws the voters answered to the recreational lands Wis. 1518) yes. Sess. Laws the voters answered DuVivier, (See Advisory policy employed internationally. ballot measures have also been Democracy The United States as a Democratic Ideal? International Lessons in Referendum Zealand, Denmark, Finland, Temp. [describing Italy, L.Rev. 847 use in New Sweden, Norway, Kingdom].) and the United 6, 1986, election) (1986 Regarding disposal (May the radioactive waste referendum N.C. 1), “against”; concerning continuing challenges Sess. Laws North Carolina voters answered 19, 1987, election). (1987 repositories (May federal selection for nuclear waste Measure 1 Or. 17), Oregon yes; concerning question (Apr. Laws voters answered the radioactive waste site no; election) (1983 881), concerning Wis. Sess. Laws Wisconsin voters answered 4, 1986, (Nov. election) (1986 205), Question program question national acid rain Mass. Acts yes. Massachusetts voters answered 3, 1970, (Nov. election). (1970 Question Regarding the war in Vietnam No. 5 Mass. Acts 437), option—withdrawal pursuant “planned Massachusetts voters selected the middle to a schedule.”

530

Island, and Wisconsin—asked their voters whether the state should inform the President and that the desired a international Congress negotiated nuclear moratorium and arms reduction.13 weapons in the federal role health

Regarding government’s legislating concerning care, the Massachusetts and New each asked voters: Jersey Legislatures Should the state to enact a national health care urge Congress program?14

C. Nationwide and in measures submitted to Advisory California: councils) voters local boards and legislatures (county city Nationwide, the use of ballot measures to ask voters legislative advisory similar is even more at the level of local policy questions frequent legisla- (See boards of and councils. tures—county supervisors city Ballotpedia, 4, of Jan. <http://ballotpedia.org/Advisory_question> [“Advisory [as 2016] level, are most used at the local often to voice the questions commonly levels of Cities have made opinions region higher government.”].) [the] use of such measures since the late 19th and 20th centuries. advisory early Zimmerman, Referendum, (See, 140 such e.g., supra, [describing Buffalo, Crouch, in measures New York and City, Chicago, Wilmington]; The Initiative and in Cities 37 Amer. Municipal Affairs: Referendum (hereafter 491, 492, Cities) Poli. Sci. Rev. 501 [observing Referendum referendum, councils have made use of . . . the “[m]any city advisory ” ballot, ‘straw vote’ that between 1910 and 32 noting Detroit].) such measures were submitted to the voters Local initiated ballot measures California reflect a legislatively similar Prior to and even there was at that time no pattern. though so, constitutional or for explicit statutory authority doing advisory policy measures often on the ballot Los and San Francisco. appeared Angeles Cities, (See 37 Amer. Poli. Sci. Rev. at Referendum ballot, on the L.A. on the [noting “[p]ublic [p]olicy [referenda” ballot].) S.F. codified and Eventually, Legislature specifically 2, 1982, (Nov. election). (1982 Question Freeze of nuclear arms escalation Public No. 1 79-81): Jersey yes; regarding N.J. Laws New voters answered referendum nuclear armaments 2, 1982, (Nov. election) (1982 1415): yes; R.I. Pub. Laws Rhode Island voters answered 14, 1982, election) Question weapons (Sept. referendum on nuclear moratorium and reduction (1981 1710): yes. No. 1 Wis. Sess. Laws Wisconsin voters answered At least one other state legislature placed a similar measure on the statewide ballot via the state’s indirect initiative 6, 1984, (Nov. election) (1984 procedures: on the nuclear arms freeze Initiative No. 3 initiative. 422), S.D. Sess. Laws South Dakota voters answered no. 14Regarding legislative advisory question the Massachusetts on national health care. 4, 1986, (Nov. election) (1985 568), Question yes; No. 7 Mass. Acts voters answered 5, 1991, (Nov. Question concerning Jersey’s New national health care No. 2 referendum. election) (1991 802), yes. N.J. Laws voters answered of measures on the ballot acknowledged propriety placed entities, local boards of legislative including county supervisors city 9603, (a), councils. Elections Code section subdivision contem- expressly measures to allow “voters within the or a plates advisory jurisdiction, portion thereof, issues, to voice their on substantive or to indicate to the opinions local or of the ballot legislative body approval disapproval proposal.” available, Counted from the most recent for which data is year readily been, alone, cities, there have California 184 such measures—mostly by with others more than nine statewide each by counties—averaging year.

What has been the nature of these local measures? have They above, mirrored the of statewide described with a types policy inquiries focus on issues of local and within the local special specific importance been, to act. have for legislature’s authority Typical example, questions the conduct of local elections. The of Modesto has asked its concerning City district, voters: Should council members be elected or at The city large? of Davis has asked: Should council elections be conducted City city pursuant (also to “choice known as “instant runoff’ or voting” “preference” voting)? of Lancaster has asked: Should the an ordinance City city adopt elections with school district elections ?15 consolidating municipal countywide Other measures have the voters’ probed policy preferences concerning of miscellaneous local matters. The of has asked: variety City Milpitas Should the council submit to the voters a to revise the city proposal city charter various council? The ways, including enlarging city City National has asked: Should the council establish a Citizens’ Police City city Commission? The of South Gate has asked: Should the Oversight City city council enact a the number of vehicles that be permit system regulating may (CEDA) compilation The California Elections Data Archive is a of candidate and ballot elections, prepared joint project results for all local California as a of the Center for California Research, Sacramento, University, Studies and the Institute for Social California State and the Research, (Institute Secretary <http://www.csus.edu/isr/reports/ of State for Social CEDA california_elections> 2016]; Secretary County, City, of Jan. Cal. of State Web School [as site. <http://www.sos.ca.gov/elections/county-city-school- District & Ballot Measure Election Results 4, 2016]). district-ballot-measure-election-results> of Jan. For text and results of local [as through year’s measures listed footnote reference will be made to the relevant CEDA compilation, by city county results. “ ” Modesto, 6, 2007, (Nov. election): City ‘[b]y Measure J voters answered [district’ CEDA, results, Davis, 7, 2007, (2007 23); (Nov. election): city p. City of Measure L voters CEDA, results, Lancaster, (2006 38); yes city p. City (Apr. answered 2008, Measures A and B CEDA, results, election): (2008 26). yes city p. voters answered Likewise, city other cities and counties have addressed local election rules: Should the elective, mayor council call an election for the voters to decide whether the office of should be 2, 2010, (Nov. appointed by city (City Valley, rather than council? of Moreno Measure O CEDA, results, election): (2010 31).) yes city voters answered Should mailed ballots be used 30, 2011, (San general County, (Aug. for all future district elections? Bernardino Measure 1 CEDA, results, election): (2011 14).) yes county voters answered The of Half Moon has asked: Should the parked overnight? City Bay city a of its of eminent domain when the adopt policy employing powers only stated use” is not . . . based on the desire for “public “primarily City’s CEDA, results, 23.)16 (2005 ‘increased revenue’ ”? City city p. other measures have addressed and

Many housing, development, related service issues. For of San has asked: public example, City Diego 5,000 Do the voters endorse of low-rent and development up apartments townhomes scattered of Modesto has asked: throughout city? City Should the council sewer service to certain areas? Los city expand Angeles formed, has asked: Should a new flood control district be or should County an area be annexed to a current flood control district?17 existing county 6, 2006, CEDA, (June election): (2006 City Milpitas, of Measure I voters answered no results, 35) (the city p. Milpitas City place measure asked: “Should the Council before the (1) city proposal require following: budget only voters a charter that would reserve for salaries, million, (2) (3) $15 emergencies approval capital projects and not voter of future over members, (4) City open process top city increase Council from five to seven recruitment for (6) management, performance city departments, approval scheduled audits for all voter 5, 2002, amendments?”); (Nov. election): city City City, for charter of National Measure L CEDA, results, Gate, (2002 36); yes city p. City (Apr. voters answered of South Measure P CEDA, results, election): (2005 20); city p. City Bay, voters answered no of Half Moon 8, 2005, CEDA, results, (Nov. election): (2005 23). yes city p. Measure O the voters answered representative questions city Other local matters addressed such as: Should council mem- Burbank, 10, 2001, compensation percent? (City (Apr. bers’ election): be increased 5 of Measure 1 CEDA, results, (2001 16).) yes city p. city replace voters answered Should the its employees’ existing plan plan? (City defined-benefit retirement with a defined-contribution Grove, 4, 2008, CEDA, (Nov. election): (2008 yes city Pacific Measure Y voters answered results, 30).) p. 5, 2002, (Nov. election): (2002 City Diego, yes of San Measure A the voters answered CEDA, results, Modesto, 6, 2001, 36); (Nov. election): city p. City of Measures N and O CEDA, results, (2001 20); yes city p. Angeles County, voters answered Los Measures J and K 8, 2005, CEDA, results, (Nov. election): (2005 15-16). county the voters answered no following questions: existing separate Other similar measures have addressed the Should fire Sausalito, police department buildings single building? (City be consolidated into a new 5, 2002, CEDA, results, (Mar. election): (2002 28).) city p. Measure B the voters answered no communities, county unincorporated they Should certain areas of the remain official or should 3, 2009, (L.A. (Nov. election): incorporated separate city? County, be into a Measures A & B CEDA, results, (2009 14).) yes county p. voters answered to the first and no to the second city adopt requiring landscaping Should the council an ordinance removal of in order to restore Malibu, 8, 2008, primary private (City (Apr. and maintain views from homes? Measure E CEDA, results, election): (2008 26).) yes city p. ownership voters answered Prior to transfer of site, Superfund county Department Navy of a toxic conditions, should the demand the meet certain costs, including thorough study, funding for remediation identification of funds to contamination, community any completion cleanup? reimburse the for and actual of site 5, 2002, CEDA, (Nov. election): (2002 (Orange County, yes Measure B voters answered results, users, 18).) county implements If the water district fluoridation for some local should (Humboldt prorated passed County, costs be on to those who receive the treated water? 5, 2008, CEDA, results, (Feb. election): (2008 15).) county Measure B voters answered no

533 Numerous local measures have about land- inquired specific related For has asked: Should developments. example, Siskiyou County certain river dams and associated facilities be removed? hydroelectric Impe- rial has asked: Should the create a new international County county regional to the services airport replace augment provided by county’s existing international of Hawthorne has asked: Should certain airport? City public lands be sold to or earmarked revenue?18 Still others have generate general asked about and related issues. For of Calexico has gaming example, City asked: Should a local ordinance give city authority negotiate agreements with Native American tribes and of concerning development operation gam- and entertainment resorts?19 ing

Local voters have been about their views questioned policy concerning of taxes and related revenues. For of prioritization existing example, City 2 has asked: Should of revenue from the increase Plymouth percent streets, transient tax be used to fund and and occupancy parking, landscaping, events, should another of that revenue fund percent signs advertising for tourism has asked: Should revenue from new promotion? Kings County sales taxes be used for local criminal voter-approved specified justice system Tehama has asked: Should tax improvements? County proceeds funding and fire services be distributed to the cities police county incorporated to their proportion respective populations?20 2, 2010, CEDA, (Nov. election): (2010 Siskiyou County, Measure G voters answered no results, 8, 2005, 19); (Nov. election): county p. Imperial County, Measure P voters answered CEDA, results, Hawthorne, (2005 15); (Nov. yes election): county p. City of Measure A 200E CEDA, results, (2001 16) (the city p. voters answered no measure asked whether educational, support airport property improvements police voters would sale of local to fund Likewise, programs, jobs). City Capistrano’s and fire and to create new when the of San Juan 5, 2002, (Nov. election) they support Measure DD asked voters whether would sale of more CEDA, results, (2002 city private entity, they city than 13 acres of land to a answered no 32).

p. Calexico, 7, 2005, CEDA, (June election): (2005 City yes of Measure N voters answered results, 17). city p. subsequent produced Numerous similar local measures have 8, 2005, (Nov. election), opposite Regarding County’s advice voters. Yuba Measure G CEDA, results, (2005 18); county p. concerning County’s voters answered no Glenn Measure 6, 2006, CEDA, results, (June election), (2006 15); county p. concerning F voters answered no 2, 2010, CEDA, (Nov. election), (2010 City of Richmond’s Measure U voters answered no results, 6, 2006, 23); (June election): city p. County, agreed see also Colusa Measure D voters CEDA, results, (2006 county oppose county that the should local off-reservation Indian casinos Petaluma, 7, 2006, 15); (Nov. election): p. City agreed city Measure H voters that the CEDA, (2006 steps” oppose gaming specific council should “take all lawful on local lands results, 37). city p. 6, 2012, CEDA, (Nov. election): (2012 City Plymouth, yes Measure S voters answered results, 2, 2010, 21); (Nov. election): city p. City Plymouth, see also Measure P to the same earlier, CEDA, results, (2010 22); question posed yes city Kings the voters also answered 6, 2001, CEDA, results, (Mar. election): (2001 County, yes county Measure A voters answered 11, 2004, 14); (Nov. election): (2004 County, Tehama Measure A voters answered no

Likewise, some ballot have substantive questions accompanied measures to raise sales and related taxes. The of Richmond proposing City If has asked: a business license fee on sugar-sweetened beverages passes, should revenues be used to fund after-school primarily sports programs, fields, meals, healthier school as well as medical and care for sports obesity If children? The of South Pasadena has asked: local indigent City proposed tax increases are should at least 65 approved, percent generated revenue be used for infrastructure and no more than 35 improvements, Grande, for salaries?21 The of percent expended city employee City Arroyo that an ordinance measure a one-half-cent sales tax to fund noting imposing voters, needs was before the a menu of community presented ophons, asking (a) measures whether a of increased funds should separate porhon go (b) a infrastructure upgrading specific highway interchange? specific city (c) (d) maintenance needs? and fire services? to make police improvements facilities more accessible to those with disabilities?22 city CEDA, results, 25). county p. Similarly, City of West Sacramento has asked: Should streets, funding priority given building library, police facility, improving public be a new access, (Measure (Nov. building programs, maintaining adequate after school reserves? J CEDA, results, election): (2002 41).) yes city p. voters answered Richmond, 6, 2012, (Nov. election): (2012 City yes of Measure O voters answered CEDA, results, Monte, 6, 2012, 22); (Nov. election): city p. City of El Measure C accord. whether, sugar-sweetened beverages passed, asked if a business license fee on revenues should services, recreation, primarily police emergency parks be used for and as well as and and CEDA, results, (2012 25); projects obesity, yes city p. City to treat childhood voters answered Pasadena, 6, 2007, CEDA, (Nov. election): (2007 yes of South Measure AV voters answered results, 19). city p. approve proposed increasing Similar combined measures have asked: If voters a measure taxes, proceeds only police anti-gang operations, including should those be used to fund drug nardino, supervised youth (City resistance education and after-school activities? of San Ber- 7, 2006, CEDA, results, (Nov. election): (2006 yes city Measure YY voters answered increase, 31).) p. approve If voters a one-half cent sales tax should half of the new revenues be spent poor takeaways” “to restore services to the that have been cut due to State and the other programs half on school “to restore educational services . . . eliminated due to State Richmond, 7, 2011, (June election): takeaways”? (City yes Measure C voters answered CEDA, results, extended, (2011 16).) city p. proceeds If a sales tax measure is should the fund Sacramento, system protection improvements? (City a streetcar and flood of West Measure U 4, 2008, CEDA, results, (Nov. election): (2008 39).) yes city p. voters answered If voters were increase, approve primarily a sales tax should the additional revenues be used for Robles, 6, 2012, (Nov. maintaining city’s roadways? (City of El Paso de Measure F-12 results, election): (2012 33).) yes city p. approve the voters answered CEDA If voters were to a increase, libraries, proceeds repair',parks, half-cent sales tax should the fund street after school facilities, services, programs, police utility child and senior and fire and reduction of Whittier, 5, 2002, (Nov. election): property (City tax assessments? Measure V voters CEDA, results, (2002 28).) yes city p. approved utility answered If voters tax increase from services, percent, “public safety including 10 to 12 should that increased revenue fund Madre, 10, 2012, election): paramedic programs”? (City (Apr. of Sierra Measure 12-2 voters CEDA, results, (2012 24).) yes city answered Grande, K-06, L-06, M-06, 7, 2006, (Nov. election): City Arroyo Measures N-06 voters three, CEDA, results, (2006 33). yes city answered to the first no to the last

535 concerned, a few ballot measures have not local Finally, advisory policy issues, but instead—and to the measures analogously advisory underlying resolutions described earlier—entreaties to the President and Con- legislative federal gress regarding military policy.23 mind, whether, in I

With this overview turn to the as a question general matter, the has to an measure on the authority place advisory statewide ballot. Legislature’s Right to Inform Itself

II. General to to Action Order Consider Whether Undertake demonstrates, As the discussion over numerous decades foregoing legisla- tive bodies have submitted ballot measures to the voters Califor- advisory If nia and such measures were throughout country. constitutionally one would have that would have been impermissible, thought objections raised on numerous occasions the last and that we would throughout century find decisions down such measures. But the have judicial striking parties to no such decision and research has uncovered none. pointed independent Instead, the of such ballot measures validity legislatively instigated advisory has been so well to such mea- apparently accepted judicial challenges and, below, sures have been rare as the few that have been very explained filed have been rejected.

A. Prior actions and the 1879 assumptions by drafters of it; Constitution and the voters who court decisions adopted early measures; to ballot

addressing challenges advisory scholarly measures commentary concerning propriety advisory matter, As an initial it is to that the drafters of the important recognize that, 1879 Constitution—the version of the charter as revised it, remains that under had operative today—assumed an measure the statewide ballot order to place upon acquire official views of the electorate on a that was question policy completely Moreover, unrelated to effort to amend the federal charter. it is clear that any the electorate that the charter assumed that the had approved such a measure for the vote. authority present people’s ante, I.A., As observed statute 1877 the part Legislature placed ballot, measure on the election September general asking 7, 2006, (Nov. election), County, asking supported See Mendocino Measure Y if voters CEDA, results, (2006 ending military occupation Iraq county yes]); answered [voters 2, 2004, (Nov. election), City County, asking San Francisco Measure N a similar question—“[shall city policy urge government troops it the United States to withdraw all be] CEDA, results, (2004 Iraq county yes]). from answered [voters 536 “ ” “ ”

voters whether were Chinese they ‘[a]gainsf immigration. ‘[f]or’ interim, the a state constitutional convention had been called and was held (1 Stockton, the months of 1878 and 1879 Willis & Debates and closing early (Willis Stockton)), Cal. Const. Convention 1878-1879 at Proceedings, which the of Chinese was a focus. the course subject immigration major During of those debates the all of whom virulent and delegates, essentially expressed Stockton, 627-640; (see, 2 racist views on the issue Willis & at e.g., pp. Stockton, 641-662, 663-692, 695-702), Willis & at discussed pp. explicitly the ballot measure. The existence and assumed impending advisory propriety of that measure was instrumental constitu- impending derailing proposed tional such the instead provision expressly barring immigration; delegates were content to let the electorate on the issue via the speak upcoming ballot measure.24 when the advisory Accordingly, Legislature’s advisory measure was to and acted the voters finally presented upon by September 1879, a few months had the new Constitution itself just they approved after of that same the electorate voted on that measure with May year, advisory the of the constitutional who assumed that the blessing delegates, obviously and retained to submit such an Legislature possessed authority measure to the statewide voters. Nor is there reason to believe that the any electorate, earlier, voted their of the new charter months having approval only it, had basis to that under lacked to have any suspect authority vote on that ballot measure.25 September The few lawsuits measures were rebuffed. As early challenging advisory earlier, in mentioned both 1909 and 1911 our like those Legislature, states, electorate, numerous other measures to the again posed advisory its advice which candidate the that time seeking concerning Legislature—at the state’s United States senators— possessing appoint 1909, 405, 2, 691; 1911, (Stats. should to that ch. Stats. appoint position. p. § observes, 705.) ch. As the when the 1909 enactment p. majority § Rolfe, argued against including proposed This movement was led Mr. who charter, immigration provision proposing impending advisory in the instead deference to the Legislature passed submitting question qualified vote: last an Act to the voters of “[T]he State, they against immigration. Any gentleman this to vote whether are in favor or Chinese may They upon against turn to the statutes and find it. are called to vote for or Chinese immigration. upon Secretary And the result of that the Governor and of State are to (2 may memorialize the President of the United States as to what that decision be.” Willis & Stockton, Rolfe, Ultimately, delegates agreed narrowly at col. with Mr. (Id., passing express provision bailing immigration. a motion to strike the col. 1 see, Stockton, strike]; [noting e.g., that the vote was 54 to 51 to 3 Willis & 1493 [the reported by adjustment], finally adopted].) article as the committee on revision and 1519 [as voters, delegates, overwhelmingly The statewide in line with the views of the convention (See they “against” immigration. Announcing answered that were Chinese Certificate Results Immigration Society Pennsylvania of Vote on Chinese Act online at Historical <http://digitalhistory.hsp.org/pafrm/doc/certificate-vote-act-ascertain-and-express-will-people- 4, 2016].) state-california-subject-chinese> of Jan. [as this on the 1909 election ballot was as placing question primary challenged (1909) the Constitution’s “one rule Socialist v. Uhl violating subject” Party statute, 181], 155 Cal. 776 P. we the and commented: “There is upheld [103 in the constitution . . . which the from nothing prohibits legislature providing at a for an of a choice as to a candidate for primary expression [election] United States senator. It is within the to do so . . . .” general legislative power 782.) (Id., at p.

The South Dakota Court had reached a consistent conclusion Supreme (1896) in State ex rel. Cranmer v. Thorson 9 S.D. 149 years previously [68 (Cranmer), N.W. of a ballot upholding validity legislative advisory 202] measure outside the article V context. The South Dakota Legislature sought a to its statewide voters whether a pose question concerning provision charter, state, the state Prohibition within the should be establishing repealed. (Cranmer, A 68 N.W. at 1895 S.D. Sess. Laws p. citing p. voter, that the ballot measure as was not itself a prospective arguing phrased amendment, but instead a mere the electorate’s proposed question seeking amendment, views about a future nonbinding policy possible sought— case—to the defendant similarly petitioners present enjoin secretary of state from such an measure on the ballot. The state placing if Court that even the measure Supreme rejected challenge, explaining the voters’ advice and not their actual determination of the sought merely issue, ultimate the court was aware of “no law prohibiting legislature (68 from its wisdom N.W. at submitting any question may suggest.” p. measure, added.) italics contention that the as Regarding challenger’s voters, a to the and that “the constitution phrased, posed only policy query (ibid.), will not be whatever be returned” the court stated changed reply may that the was free to “submit a not intended to legislature perfectly question (ibid.), law” and concluded that the “has done change organic legislature (id., 203). what it had a to do” To determine otherwise and take the right ballot, wrote, matter off the the court “would disturb the of checks system (Id., and balances which the constitution has so constructed.” carefully 204; 1985) (S.D. see also v. Kundert 375 N.W.2d Wyatt to a vote [acknowledging legislature’s power pose advisory “questions accord, ballot];26 of the electors” on the statewide Southeastern Fair Michigan Wyatt proceeded The court in to find that the measure before it was in fact a form of “legislative only upon approval by referendum—a that would be effective the statewide act[]"’ Kundert, question. (Wyatt voters—rather than a mere ballot v. 375 N.W.2d at 191-192.) 730], Wagner See also v. Summers 33 S.D. 40 N.W. in which the Supreme upheld specifying legislatures (except South Dakota Court a statute that acts of local affecting public safety)—including legislative time-sensitive matters those acts that did not but, case, merely granted permit by subject make law as in that resolution—were to the reaching electorate’s veto review referendum at the ballot. In this conclusion the court legislature enjoyed power “except stressed that the as it is limited the state Constitution and (id., presumptions upholding legislation federal Constitution” and that all favored 144 N.W. at 538 (1986) Coalition v. Killeen 370 N.W.2d

Budget Mich.App. 330] can do which it is not from and anything prohibited doing” [“the on the ballot and . . . subordinate may “place advisory questions empower well].) entities to do so” as governmental

Scholars have reached the same conclusion. More than 100 long years ago, above, after some of the measures mentioned Ellis describing advisory policy seem, Paxson Oberholtzer observed: “There is it would that could nothing, the from to ask the for advice” prevent legislature resolving by posing (Oberholtzer, in on the statewide ballot. The Referendum America questions Lowell, America); (1911) (hereafter in The Referendum see The p. Initiative, in in the United States The Referendum and Recall Referendum edit., “can, course, 1912) (Munro that a consult” p. [noting legislature vote”].) “the electors” means of an informal More Markku Suksi “by recently, echoed those earlier observations: seems to be that would nothing “[T]here a state from an referendum” or ballot prevent legislature organizing advisory (Suksi, A measure. the of Constitutional Bringing People: Comparison Forms and Practices of the Referendum (Bringing People).)

B. in the ’s or in Nothing majority opinion analysis, fundamental that this a conclusion legal principles guide analysis, supports measures are to the article V context advisory confined that the majority’s legal analysis, recognizing Legislature’s legislative is and there is the California Constitution that authority plenary nothing ballot, from an measure on the precludes placing itself the conclusion that no constitutional confines advi- supports principle measures to the article V context.27 this four of the fundamen- sory regard, tal alluded to bear here. legal principles majority opinion repeating First and foremost: The California unlike Legislature’s legislative power, Constitution, that of under the federal is As Congress plenary. explained decisions, hornbook of numerous “all the passages Legislature enjoys which are to enable it to exercise all powers privileges necessary free, manner, functions, in a its respects, intelligent impartial appropriate 732). rejected argument justices The court that the should set “some limit to the character electors,” may of the acts which be referred to the and held instead that “the in its ballot], prescribe may wisdom must be what acts . . . be the voters at the [to left referred authority prescribed by and that courts are without to declare limitations where none are added.) (Id., Legislature.” p.at italics 27Likewise, majority’s analysis rejecting points by petitioners (maj. the structural raised ante, 513-519) opn., applies as well to ballot measures outside the article V (See III.) post, pt. context.

539 so far as it be restrained of the except may by express provisions Constitution, itself, or some law made unto and by express regulating limiting 395, Moreover, 403.) (Ex (1866) the same.” D. O. 29 Cal. parte McCarthy “ ‘our Constitution is not a of but rather a limitation or restriction grant of the ”—and we do not look to it order upon powers Legislature’ “ ‘ act, ‘“todetermine whether the is authorized to do an but Legislature only ’ ” 97, (Dean (1951) if to see it is v. Kuchel 37 Cal.2d 100 prohibited.” [230 811].)28 P.2d “ An Second: essential attribute of the function is the ‘determi legislative ” (Carmel

nation and formulation of Fire Protection legislative policy.’ Valley 287, 636, (2001) Dist. v. State 25 Cal.4th 299 Cal.Rptr.2d [105 of California 533].) ‘“In 20 P.3d fact it could be said that is the policymaking legislative 1205, (Schabarum (1998) function.” v. 60 Cal.App.4th California 745].) 1219 determination of comes Cal.Rptr.2d Legislature’s policy [70 function, into not with to its traditional but also play only regard lawmaking with to its traditional function the issuance of resolutions regard concerning house, vote of each or reflecting majority expressing approval disapproval of or or or legislation pending proposed Congress, regarding programs activities of the federal This resolution has been government.29 long the California and those of other states numerous employed by and varied contexts.30 widely 28 Congress, possesses only specific In other words: the United States which those “[U]nlike Constitution,

powers delegated by to it the federal it is well established that the California Legislature possesses plenary legislative authority except specifically by as limited (Marine (2005) Society California Constitution.” Forests v. Coastal Com. 36 Cal.4th California “ 1, 30, 1062].) Cal.Rptr.3d cursory 31 113 P.3d ‘The most examination . . . confirms how governments distinctive state constitutions and are. The Federal Constitution restricts the government by imposing prohibitions government by granting federal both on the constitutions, contrast, government only powers. limited Under state the second restriction ” (Id., largely missing, plenary legislative power.’ is and thus the states exercise 29 See, al., (2011) e.g., pages (describing Wilson et California’s 120-121 the use concurrent, resolutions); joint, separate of Assem. and Sen. Senate Concurrent Resolution Sect, 37, State, (2015-2016 Sess.) (filed Reg. chapter No. Statutes 2015 resolution 48 with 2, 6, 2015) concerning adoption joint Assembly June rules 5 and rules of the Senate and Session; Statutes, 2, Regular compare page for the 2015-2016 58 Cal.Jur.3d section 371 (“A joint . . . or concurrent resolution is one that is concurred both houses of the State”; legislature” upon filing Secretary and “takes effect of it with the a “resolution is act, legislative legislature passing lawmaking not a and the a resolution does not exercise its power”). 30 See, 1849-1850, (Stats. 465); e.g., urging building Joint resolutions of national railroad 8, 15, (1919 Sess.) Reg. chapter page Senate Joint Resolution No. Statutes 1919 resolution 1439 cancelled); (urging forgiven Assembly that loans made to war allies not be Joint Resolution 17, (1919 Sess.) Reg. chapter page (urging acquisition No. Statutes 1919 resolution “ ” Mexico); ‘Lower California’ and the Coronado Islands from Senate Joint Resolution No. 18 (Stats. (1919 Sess.) Reg. chapter page (urging support resolution for self- Ireland); (1981-1982 Reg. determination of Senate Joint Resolution No. Statutes 1982 Sess.) chapter page (urging counseling resolution and treatment for Vietnam veterans 540 incidental,

Third: The that are and Legislature possesses powers necessary, to the ultimate of functions.” “ancillary performance lawmaking [its] 83, 873].)31 (Parker (1941) v. 18 Cal.2d 89 P.2d this Riley regard [113 needs to be able to obtain information determi supporting policy nations that underlie law or resolution that it considers. any statutory

Fourth and “The which attends act of the finally: presumption every is that it is within the constitutional this legislature power”—and “presump tion . . . holds until it is made to what it is good appear particular violating 491, (Macmillan (1920) constitutional limitations.” Co. v. Clarke 184 Cal. “ 1030].) ‘If 496-497 P. there is doubt as to the any Legislature’s power [194 case, to act the doubt should be resolved favor of the any given 8, disorders); suffering posttraumatic Assembly from stress Joint Resolution No. Statutes 1993 11, (1993-1994 Sess.) Reg. chapter page (seeking resolution 7766 federal assistance to fund 57, immigrants); Assembly services for undocumented (2001-2002 Joint Resolution No. Statutes 2002 183, Sess.) Reg. chapter page (urging resolution 8029 that enforcement of immigration responsibility, law remain a federal and not a state or local law enforcement 7, (2005-2006 Sess.) responsibility); Reg. Senate Joint Resolution No. Statutes 2005 resolution 35, work); chapter page (urging Congress protect right equal pay equal 6022 to women’s to for 6, 57, (2005-2006 Sess.) Assembly Reg. chapter Joint Resolution No. Statutes 2005 resolution page (urging support people); 6053 relief and for Darfur and its Senate Joint Resolution 16, 68, (2007-2008 Sess.) Reg. chapter page (urging No. Statutes 2008 resolution 5753 veterans); emergency prescription program establishment of an for Senate Joint Resolution 28, 107, (2007-2008 Sess.) Reg. chapter page (urging No. Statutes 2008 resolution 5818 new 49, (2007-2008 consumption guidelines); Assembly sodium Joint Resolution No. Statutes 2008 98, Sess.) Reg. chapter page (urging gray resolution 5803 that the Cal. whale be listed as an 21, (2013-2014 Sess.) endangered species); Reg. Senate Joint Resolution No. Statutes 2014 Genocide). chapter (urging Turkey acknowledge resolution 32 that the Armenian nationwide, see, Concerning general example. use of resolutions in California and for Note, 672, (1920) Legislative (“[d]uring Notes and Reviews 14 Am. Pol. Sci. Rev. 674 [nationwide], legislative adopted sessions of 1919 over 300 resolutions and memorials were of interest”; general public questions which 206 of interest and 117 . . . of local in 1919 [were] California’s, legislatures, including concerning alone numerous state enacted resolutions Nations, issues, League immigrants, military personnel, of aliens and education women’s issues, Gollob, etc.); suffrage, transportation commodity prices, Telegrams and Leckrone and to Washington: Using Congress Memorials to as a Measure State Attention to the Federal 3,900 (2010) Policy Agenda (finding 42 St. & Local Gov’t Rev. 239-240 that more than “memorials,” resolutions, legislatures Congress substantive were submitted state from 2006; active, during period; 1987 to the Cal. was the most with 542 and that nationwide, signals government such measures were used to send to the federal across a broad issues, range policy especially “topics traditionally Congress,” including those reserved to “environment, health, foreign “defense and international relations and aid” as well as Kovacs, control”); public Analyzing Legislative lands federal Filindra and US State [under] (2012) Immigrants Immigration: Immigration Resolutions on The Role Federalism 50 (of Migration legislatures Congress Int’l 36 resolutions state between 1993 and issues, 25). concerning immigration California issued powers implied permit operate Incidental are in order to within its “ proper sphere. legislative body right ‘When a has a to do an act it must be allowed to select ” (Parker Riley, supra, quoting the means within reasonable bounds.’ v. 18 Cal.2d at 82].) Attorney-General v. Brissenden 271 Mass. N.E. action. restrictions and limitations are to be construed Legislature’s [Any] and are not to be extended to include matters not covered strictly, by used.’ . . . enumeration of language Specifically, express [Citations.] is not an exclusion of others not named unless legislative powers accompa Kuchel, 97, 100, (Dean nied terms.” v. 37 Cal.2d italics by negative words, Dean.) In added other ‘“allintendments favor the exercise of the by (Methodist Sacramento v. Legislature’s plenary authority.” Hosp. Saylor of 161].) (1971) 5 Cal.3d 488 P.2d Cal.Rptr. [97 C. and conclusions use ballot measures to Summary concerning of issues Legislature regarding policy

inform earlier, As demonstrated ballot measures have been used advisory long states, our those of other and local to obtain Legislature, legislatures, information to inform the about laws or resolutions. legislative body possible As observed more than 75 even when the ultimate years ago, decisionmaking remains with the more . . . ‘“presumablytechnically qualified legisla (whose ture” members retain and ‘“full to act employ independently, whether it be accordance with or the wishes of the against people”), ballot measure is a useful device for “authoritative advisory securing popular basis” and participation public policy-making upon non-legislating communication between the electorate and its “facilitating representatives.” (The 304, 315.) Q. 14 Pub. at Advisory Referendum, supra, Opinion pp. reasons,

For similar Chief Justice nearly years ago Rehnquist approved the same kind of communication between the electorate and its advisory (1978) in Kimble v. Swackhamer 439 U.S. 1385 L.Ed.2d representatives [58 ante, 510-511), 99 S.Ct. As the observes majority (maj. opn., pp. 51]. matter, in that as circuit then Associate Justice acting judge, Rehnquist refused to remove from the Nevada ballot an measure submitted the state the electorate’s views on the legislature, seeking proposed Equal Amendment. Justice that he would be “most Rights Rehnquist explained disinclined” to read the court’s cases or the federal Constitution high prior “as out communication between the members of the ruling legislature their constituents. each member the Nevada is to obtain If free I the views constituents in the district which he can legislative represents, see no constitutional obstacle to a this nonbinding, advisory referendum of 1387-1388, added; (Kimble, sort.” italics see also Kimble v. Swackhamer 94 Nev. 600 P.2d to the [rejecting challenges 161] measure the face of a who that the dissenting justice suggested had no under the state Constitution to submit such a legislature authority voters].) ballot measure to the sources,

As these combined with the California constitutional cases history, measures, and authorities and of advi- addressing advisory myriad examples measures discussed above of the sory suggest—and light guiding principles earlier, mentioned its core role including Legislature’s plenary authority, and and the deference that we afford to the shaping articulating policy, determination of its exercise of follows that the Legislature’s power—it inform itself a statute that an Legislature may by enacting places advisory on the ballot order to obtain the voters’ views with question policy regard action that the has to undertake. any potential authority Whether the a list of legislative body proceeds by posing interrogatory policy electorate, or, often, to the as most a questions single, straightforward is the same: to inform itself about the of question, goal policy preferences the voters to a matter which the has relating upon legislative body authority to act. And this pursuing information-gathering goal by placing advisory ballot measure before the voters such a matter—whether related concerning role, function, to its article V its or its to issue general lawmaking resolutions—a acts and within its legislative body reasonably powers. matter, I

Nor do reason to as a either the perceive any question, general or the of this form of information a efficacy prudence gathering by legislative observes, As the body. majority representative democracy, legislators ‘“[i]n are to be to their constituents.” generally expected responsive (Maj. opn., ante, 517.) In this recent that regard, empirical scholarship suggests efficacious, the use of measures is practice, advisory providing pertinent information to a and that bodies have legislative body, legislative employed the information obtained from results of ballot measures when advisory whether, how, and to undertake actions within their own deciding reasonably A of local ballot measures California revealed that powers. study advisory boards and councils with the advice of the voters more county city complied course, than 80 of the time—while still and percent exercising, prudence measured discretion to and from that advice as disagree depart appropriate. Government Advice: Public (Ely, Participation Policymaking Through 92, 97, Ballot Measures 47 St. & Local Gov’t Rev. Advisory Advice).)32 (hereafter Government by reports ninety-eight advisory The author measure outcomes assessed over a “[o]f decade, time, percent” question-posing county city “complied 81.6 board or council compliance with voter sentiment” and that the “overall rate with votes increases to percent considering only government 87.8 when the measures over which the local [had Advice, (Government

jurisdiction directly authority.” exercise 47 St. & Local to] Regarding rejected, Gov’t Rev. at situations in which the voters’ advice is the author ante, City Arroyo mentions the Grande measure described text and footnote outcome, “Despite City Arroyo reportedly comments: the vote Grande used the revenue purposes likely political for all foui' measure .... Elected officials saw little risk to honored, noncompliance approved general such since the other uses were revenues are fungible, disapproved [upgrades and the action to meet Americans with Disabilities Act of

543 discussion, ante, to a alluded to at the start of this Finally, returning point Constitution, 1966, II.A.: There is no evidence that the as amended part restrict, was intended to remove or to preclude Legislature’s power pose earlier, ballot to the electorate. As noted advisory questions legislative Constitution, 1879, article of the as debated and was animated adopted by the drafters’ and the electorate’s that the had assumptions to submit an ballot measure unconnected with article V to the advisory statewide voters. That 1879 version of the Constitution remained place, here, 1960s, with amendments not relevant until the when at the behest of the (Commission) the California Constitution Revision Commission Legislature, undertook to review and to recommend numerous revisions to the eventually drafts, charter’s article.33The voluminous record legislative (working papers, of the 1966 revisions reveals that the reports, transcripts)34 resulting drafters, committees, Commission as well as the its and the Legislature, all of whom the Commission coordinated its Legislative Analyst—with Advice, (Government requirements] complied higher-level government by with a mandate.” 98.) p. reflecting ultimately at Further on instances in which the local board or council took a position amounting noncompliance, to the author comments: handful of cases illustrate “[A] wishes, failing comply government that even when to with voter decisions are sometimes shaped by response advisory critical information uncovered in the votes. This measured government appealing democracy discretion available to officials is to critics of direct troubled (Id., 99.) by making formally binding complex policy questions.” citizens decisions on at point concerning advisory A similar has been made the effect of measures in other countries. (DuVivier, The United States as a Democratic Ideal? International Lessons in Referendum Democracy, supra, Temp. advisory L.Rev. There the author observes: referen- “[A]n First, proves preferable existing dum often to one that binds. it does not conflict with an system government requires legislative supremacy. example, that For in the United Kingdom, parliamentary sovereignty’ formally the ‘notion of dictates that Parliament cannot be by Consequently, advisory pressure bound an referendum. an referendum exerts while Second, simultaneously preserving existing governance system. advisory process an better reality government interpret implement any reflects the actors must measure. An legislature flexibility predict provision referendum allows a the outcome of a in a possible anticipates challenges manner that reconciles conflicts and constitutional in the 848, (Id., omitted.) courts.” fns. Gould, Report Relating See on Materials of Constitution Revision Commission (Dec. 1974) Provisions in California Constitution Recommended or Endorsed Com. pages (prepared Leg.; describing history 1-2 for J. Rules Com. of Cal. of Commission and Materials); Legislature) (Report Open its relation to the on Commission see Californians for (2006) Primary Cal.Rptr.3d v. McPherson 38 Cal.4th 752-753 134 P.3d 299] Commission). (describing history relating the 1950s-1960s to the 1966 recommendations of the Materials, generally Report pages (describing See on Commission 14-16 Const., the Commission’s three initial Cal. Referendum; art. IV committees—the Committee on Initiative & Legislative Compensation; the Committee on Procedure & and the Committee Legislation provenance eight on Restrictions on & on Crimes—and the drafts con IV); concerning sidered those committees and the Commission as a whole art. see 1 State Conventions, Constitutional Commissions & Amendments 1959-1978: An Annotated Bibliography (listing, among numerous other documents circa 1964 to Feb. seven IV; reports by Legislature concerning eight the Commission to the art. and at least drafts of art. California, IV). (Boalt Hall) Finally, University Berkeley, Dean of School of Law Frank as a fundamental proposed changes—accepted guiding principle proposi- tion that the and hence has all Legislature possesses plenary authority, powers Robbins, (See, as limited the charter itself. Revision except expressly e.g., of Article IV of the California Constitution Commission p. [study by IV).)35 (hereafter staff Revision of Article attorney] Moreover, the Commission advanced its substantive “[proposals involving . . . after detailed examination and instances change only especially only where the needed and a change promote smoother-running [was] [would] IV, 3.) (Revision A state of Article review government.” supra, p. searching of the extensive revision documents has found intent nothing suggest any restrict, the Commission or else to remove or by anyone preclude as assumed the drafters of the 1879 charter and voters Legislature’s power, by who enacted it—and as illuminated cases and by history, commentary measures, discussed above—to even those place advisory policy completely issue, unconnected with article V on the statewide ballot. any above, For reasons set out when the 2014 enacted the statute to the statewide voters the challenged posing advisory policy questions set out it well within its to inform Proposition performed authority itself action that it take matters reason- concerning possible might regarding within its ably powers.

Moreover, above, for reasons set out it is to avoid again important any that ballot measures are connection with implication proper only exercise of its functions under article V of the federal legislative body’s Constitution. Such a narrow view of would find no legislative authority Newman, court, justice prominently later a on this served as one of 50 members of the library copies working papers Commission. He donated to this court’s his of the extensive regard. this regal'd study explained general In this the Revision of Article IV that as a matter the proposed types changes”—revisions regard Commission deletions, “two of and deletions. With study “specific delegations power Legislature” observed that of to the were “ “actually accepted never needed in the Constitution” because ‘It is constitutional doctrine that government government powers state is a of inherent and that a state constitution unlike the i.e., grant, Constitution of the United States is a document of limitations and not of whereas government only specifically delegated powers, government the federal has state has all the ” (Revision powers government except powers constitutionally insofar as these Likewise, are limited.’ IV, 2.) general of Article see also the comments made Commission Const., (and reorganized member chairman of the Cal. art. IV subcommittee that had taken the Beebe, committees) place prior testifying Legislature’s three James before the Joint Legislative Organization. Addressing general subject Committee on of “restrictions on the article, Legislature” imposed by proposed explained specific grants that would be he Legislature already could be eliminated because it was established case law that the (J. expressly Legislative has “all of the not denied to it in the Constitution.” Com. on (Nov. 1964) Organization, transcript healing source; case or it would conflict with the few but support any secondary decisions that have to such long-established judicial rejected challenges it would the of legislative authority; necessarily imply invalidity myriad past statewide ballot measures both California and the other advisory jurisdic- earlier; tions described likewise it would mean that all such measures submitted to the voters local bodies boards previously legislative (county hundreds California alone the last four city councils)—many just decades—were invalid and that the never be procedure may again employed views; to secure the and it would confine future ballot people’s any advisory measure to the distinct subset of measures amendment to concerning possible the federal Constitution. for the cause of full discourse and Fortunately communication between our elected and the our representatives that is not the law. democracy, Contrary Contention, to Petitioners’ the

III. Structure Republican and Its California Constitution Accountability Form of Pose Government Not Do That Preclude the from Concerns Placing Advisory an Measure on the Ballot have, in Because their that the structure of our petitioners briefing, argued scheme, constitutional our form of and concerns republican government, all militate regarding accountability, against recognizing validity measures, ballot we must address those claims now. The advisory majority matter, these contentions as an initial that under opinion rejects by explaining, our “lines of are existing system representative democracy accountability ante, Moreover, 517.) blurred to some extent.” as inevitably (Maj. opn., observes, to instruct their majority opinion people’s “right representa- tives,” Constitution, I, set out the California article section subdivision (a), itself also blurs lines of and is inconsistent with accountability, petition- ers’ view that the state charter use of implicitly prohibits Legislature’s ante, 517-518.)36 I ballot measures. on both (Maj. opn., agree scores, Ibut believe it is and useful to flesh out structural prudent petitioners’ observes, majority people’s right representatives As the to instruct their was set out in today. our initial charter in 1849 and remains in the 1879 Constitution as amended I note that Const., I, 5; Const., (Fla. provision. 14 other state constitutions include the same art. Idaho art. § I, 10; Const., 3; Const., I, 15; Const., XIX; Rights, pt. Kan. Bill of Me. art. Mass. art. § § § Const., 1, 3; Const., I, 10; Const., XXXII; Const., pt. Mich. art. Nev. art. N.H. art. N.C. § § I, 12; Const., I, 3; Const., I, 26; Const., I, 23; Const., art. Ohio art. Or. art. Tenn. art. Vt. § § § § I, XX; Const., Ill, addition, ch. art. W.Va. art. a few additional state constitutions § Const, (Ill. provide people may opinions representatives.” that the “make known their to their I, 5; Const., I, 20; Const., I, 18; Const., I, par. Wyo. art. see Iowa art. N.J. art. see also art. § § [guaranteeing people’s right opinions”].) “to make known their § point, regarding On a related the decision of this court in American Federation Labor v. Eu (AFL Eu), Cal.Rptr. holding 36 Cal.3d 687 686 P.2d v. that the initiative 609] provision place of the California Constitution does not authorize the voters to in I claims more detail and also to set out additional reasons slightly why law, in conclude their assertions hnd no case or support history, logic. in Petitioners that the creation of direct argue people’s democracy rights divested the to by necessary implication Legislature power place measures on the statewide ballot. contend: advisory They legislative ‘“[T]he is shared the and the This to enact law is by people Legislature. added.) (Italics Wo sides the same coin.” assert that this essentially They in court must both the their exercise of the initiative protect people, power, in and the the exercise of its own “encroachment Legislature, powers, against in and interference the other.” these the Applying principles present context, claim, essence, in that when the obtained direct petitioners people to make law also democracy rights by implication they necessarily the it had simultaneously stripped Legislature any power previously under the iterations of the Constitution to to the prior pose advisory questions statewide voters. This would have the who voted for these surprised people reforms more than 100 and this conclusion would be years ago, stunning today. earlier,

As observed to of the initiahve and referendum as prior adoption of the California Constitution had hve times part exercised its measures on the statewide ballot authority place advisory order to determine the voters’ views on issues of public import concerning fact, earlier, matters within the to act. as Legislature’s power explained an ballot unconnected with Legislature’s right pose advisory queshon any Constitution, article V issue was assumed the drafters of the 1879 ante, II.A.) (See the electorate who it as well. And necessarily by adopted pt. as noted to one of previously, rejecting single-subject-rule challenge those that the voters should be asked at the enactments—providing primary election their advice about which candidate the should as appoint statute, United States senator—this court upheld observing nothing the Constitution from such a on the prohibits posing question Uhl, 776, (Socialist ballot. v. 155 Cal. no other Party Although measure, question through on the ballot an initiative and which case is discussed in the majority opinion. concurring opinion, dissenting opinion: Justice Liu’s and Justice Chin’s I party brought provision note that in AFL v. Eu no to the court’s attention the of the California explicitly granting people right representatives” argued Constitution “the to instruct their' light right, provision that in of that constitutional the initiative of the California Constitution interpreted permit right should be to exercise their' constitutional to instruct their' contrast, representatives through advisory By question initiative measure. when the validity advisory Supreme of a similar initiative measure came before the Idaho Court after Eu, this court's decision in AFL v. the Idaho court held that the measure could be through process people’s submitted to the voters the initiative as an exercise of the state right (Simpson constitutional to instruct. v. Cenarrusa 130 Idaho 609 P.2d measure, 1377].) present nothing Because the case does not involve an initiative opinion speaking point. the court’s should be viewed as to this decision resulted of these California judicial regarding any early because, (there ballot measures was no other court most as challenge, likely earlier, few doubted the to take such suggested Legislature’s authority actions), both the the of the 1879 history surrounding drafting adoption Constitution, and the California constitutional at that time early precedents that, such broad Our under clearly supported authority. precedents recognized Constitution, charter, the California unlike the federal the has to take actions unless there was plenary power expressly prohibited—and is) (and in the California Constitution that the nothing prohibits from the views of the voters on a matter of concern soliciting public through a ballot measure. 1911, now, in

Neither was there nor is there from authority any jurisdiction that a state lacks such To the as holding legislative body power. contrary: earlier, in in noted 1896 the South Dakota court had Cranmer high rejected claim that its had no to such a measure on the legislature power place statewide ballot. The court concluded that it was aware of “no law prohibiting the from its wisdom legislature submitting any question may suggest,” that the was free to “submit a not intended to legislature perfectly question 202, added.) (Cranmer, the law.” 68 N.W. at italics change organic supra, p. decision, above, with that also as noted Consistently early contemporaneous scholars direct movement found “noth- addressing burgeoning democracy seem, it would that could from to ask ing, prevent legislature resolving America, (The for advice” at the ballot box. Referendum people supra, 208; Lowell, see also in the United States The p. Referendum Initiative, Recall, Referendum and Nevertheless, petitioners suggest by necessary implication, legislative to the electorate must have been removed pose advisory questions 1911, Dakota, when the of California followed the lead of South people states, II, and 10 other what is now article sections 8 and 9 of Oregon, adding Constitution, themselves the direct of initiative giving democracy rights 1008, (See, and referendum. v. 47 Cal.4th 1032 & fn. e.g., People Kelly 733, 222 P.3d direct Cal.Rptr.3d [describing early democracy 186] movement].) And or yet petitioners point nothing language history the initiative and referendum made of the California Constitu- provisions part Guide, 10, 1911) (Voter (Oct. tion that Information Gen. Elec. text of year 1911, 22, 1655) Sen. Const. Amend. No. Stats. res. ch. Prop. § to the or to restrict or its purporting speak Legislature’s authority, preclude otherwise, manner. There is no power, by implication any simply that, for the view to the initiative and referendum support by granting there was intent to limit or bar the any implied Legislature’s which as noted earlier was assumed all with to the 1879 authority, by regard charter, to to the voters.37 pose advisory questions

The same now advanced “necessary implication” argument by petitioners (that the creation of direct itself removed the democracy rights Legislature’s measures) to ballot was raised and more power pose advisory rejected—once the South Dakota Court—this time its 1985 decision v. by Supreme Wyatt Kundert, 375 N.W.2d 186. the face of a acknowl- supra, majority opinion the to a vote of the edging legislature’s authority pose advisory “questions 191), (id., electors” on the statewide ballot at p. dissenting justice argued that such had been and withdrawn when the state power necessarily implicitly constitution was amended to initiative and subsequently grant people Wuest, J.)). (id., (dis. referendum p. opn. majority contention, rebuffed that that the South Dakota Constitution’s explaining direct “has not removed the inherent democracy provision legislature’s referral and the restrictions and state charter’s imposed by through [the direct to referendums of the and not democracy provision] apply only people 191; (375 to a referendum N.W.2d at see also the legislature.” court decision Southeastern Fair Michigan appellate Michigan Budget Killeen, Coalition v. 395 N.W.2d legislature may place [the on the statewide ballot and local advisory policy questions empower govern- earlier, well].) mental entities to do so as As noted this state of affairs led a to conclude that a state scholarly study nothing appears prevent from measure on the statewide ballot. legislature placing (Bring- in the ing People, supra,

Neither does limitation on the petitioners’ hypothesized implied Legisla- ture’s find The notion that the authority support logic. people, enacting their direct and statutes and state democracy rights propose actually adopt amendments, (but constitutional also intended to necessarily only implicitly) voters, from to the is at preclude Legislature posing advisory questions best counterintuitive. I

Nor do find that the initiative persuasive petitioners’ corollary argument enacted, became, remains, once the sole process, province electorate—and that it no involvement contemplates Legislature. They assert their brief that “the basic structure of the Constitution . . . reply indicates that there is a clear line drawn between the function of lawmaking hand, on one and the reserved to the powers [initiative] on the other hand.” That assertion is dubious as a matter of unsupported 37Indeed, democracy provision at the time of the 1911 election at which the direct was voters, exercising authority submitted to the was such to ask the voters’ advice upcoming primary general concerning at the elections of which candidate the ante, (See I.A.) appoint part should as California’s United States Senator.

549 constitutional law and It also is tension with the enacted history. recently 697), (Stats. Ballot Initiative Act of 2014 ch. which Transparency reveals that the itself that it does indeed have an Legislature contemplates role to with initiative to enact statutes important play by working proponents initiatives, that were as originally proposed statutory derailing proposed initiative that was otherwise headed for the statewide ballot.38 conclusion, various structural their petitioners’ objections underlying assertions that the state charter bars ballot measures do implicitly advisory deference, not come close to the standards of and strict satisfying clarity, that, ante, II.B., construction as the decisions cited we explained part is, adhere to when whether a deciding by necessary implication, denied to the The historical of the to submit Legislature. employment ballot measures our and local California advisory by Legislature legislative bodies, states, as well as state and local bodies other would legislative render our structural to the acceptance petitioners’ challenge Legislature’s (Schabarum action at this late all the more v. stage striking. California Legislature, supra, Cal.App.4th [cautioning against interpreta- issue].)39 tion that raises significant separation powers (a) (b) (initiative proponents See Elections Code section subdivisions must immediately Secretary they percent advise the of State when have collected 25 ballot, signatures necessary qualification point Leg. for on the at which each house of the must assign appropriate joint public hearings the initiative measure to its committees and hold not days upon); later than 131 before the date of the election at which the measure is to be voted id., (a) (allowing proponents section subdivision initiative to withdraw an initiative at any prior qualification—hence permitting proponents leverage time to initiative to their' signature-gathering promote appropriate legislative compromises, resulting efforts in order to ballot). Leg. placed in a statute enacted rather than an initiative measure on the respect, concurring opinion—that With I find the conclusions of Justice Liu’s voters, general authority pose advisory questions lacks to to the state’s but that grants authority pose advisory article V of the United States Constitution to questions respect proposed to the state’s voters with to a federal constitutional amendment— untenable for a number of reasons. Lirst, issue, opinion explains, every judicial every as this decision that has addressed the issue, spoken legislature academic commentator that has on the has concluded that a state generally authority place advisory questions concurring has the on the ballot. Justice Liu’s opinion authority support contrary cites no its conclusion. Second, that, background the historical of California’s 1879 Constitution—the charter as amended, place today—strongly remains in demonstrates that the framers of the 1879 Constitution, Constitution, adopted proposed as well as the California voters who under permits place advisory question stood that the California Constitution subject particular advisory before the voters. That the matter of the ballot measure at issue at ante, II.A., (see happened discriminatory pt. opn. that time Liu, J., to be and offensive and conc. 571) post, negate does not the fact that the Constitution’s framers and the voters clearly legislatively constitutionally permissible viewed a initiated ballot measure as a procedural procedural instrumentality mechanism. This or tool—an ballot mea invariably discriminatory sure—is not its nature or offensive.

IV. Conclusion reasons, For the and with the caveat that forgoing nothing today’s decision should be viewed as into the of statewide calling question validity and local ballot measures that are unrelated to advisory any proposed Constitution, I amendment to the federal concur the and majority’s opinion disposition.

CORRIGAN, J., the benefit of time to consider the Concurring.—With fully issues this writ which to the fundamental structure presented by petition, go Third, concurring opinion’s by granting legislative authority the novel thesis—that to the charter, (and amended) Legislature, deprived the 1849 Constitution the 1879 as the state’s (conc, authority advisory Legislature electorate of the to vote on an measure submitted the Liu, J., 564-566)—flies opn. post, pp. literally legislatively of at in the face of scores of voters, initiated ballot measures that have been submitted to statewide both in throughout country inception. concurring opinion California and the from this nation’s pay any respect “page history.” declines to to this substantial of Fourth, concurring opinion posits Legislature might Justice Liu’s that the in the future employ advisory questions inappropriate ballot measures to submit to the electorate in an and manner, disingenuous penalize that the voters would succumb to such tactics rather than office, legislators improperly by voting who act them out of and that courts need to intervene Liu, J., (Conc. 576-579.) by barring opn. post, all such measures from the ballot. of at As J., (conc. Corrigan concurring opinion opn. Corrigan, post, Justice stresses in her own of at 551.) p. Sparks’s opinion Legislature, supra, Cal.App.4th Justice in Schabarum v. California 1205, appropriately explains separation powers principles against any that of militate such Moreover, judicial impulse police Legislature’s authority. although to the exercise of its advisory question long employed nationally locally, ballot measures have been the by hypothesized questions concurring opinion concerns raised ballot set out in Justice Liu’s practice. have not materialized in Fifth, if, maintains, concurring opinion vesting legislative authority as Justice Liu’s legislature inherently deprives pose advisory questions a of the to to the electorate, appears illogical concurring opinion it for the to conclude that article V of the United impliedly grants authority respect proposed States Constitution with Nothing language history purports federal constitutional amendments. in the or of article V grant legislature authority interpreted a state such and the federal Constitution has never been grant legislature—Congress—the implied power advisory question to submit an federal electorate, respect proposed any to the either with to a federal constitutional amendment or subject. other First, Finally, question concurring opinion. I two additional statements in Justice Liu’s Eu, concurring opinion disagreement holding states that there is no with the in AFL v. 687, 707-714, provision Cal.3d that the initiative of the California Constitution does not place advisory question through authorize the voters to (Conc. on the ballot an initiative measure. Liu, J., ante, 572.) opn. post, As observed footnote because this case does measure, validity opinion properly not involve the of an initiative the court’s cannot Second, expressing any question. concurring opinion be viewed as view on that asserts that general authority approve.” “the does not have to submit statutes for voters to Liu, J., debatable, (Cone. opn. post, point appeal's The assertion on that II, particularly light language history of article section 12 of the California Constitution, question Legislature may place proposed nonadvisory but the whether the approval disapproval statute on the ballot for the voters’ is also not before us in this case opinion question. and the court’s does not address that I of our state with and the government, agree join majority opinion. 49 is a valid exercise of the Proposition Legislature’s investigatory authority I under the California Constitution. also with the Chief Justice that the agree to submit measures to the electorate is not Legislature’s power advisory in limited to its role the of the federal Constitution. For the process amending Justice, reasons stated the Chief measures that are by reasonably related to use of are any proper legislative power permissible.

Both the and the Chief Justice’s concurrence em majority appropriately review of the exercise of its phasize judicial Legislature’s plenary powers action, must be restrained. Doubts should be resolved favor of legislative and constitutional limitations on construed. legislative authority strictly (Maj. ante, 520-521; J., ante, at conc. of C. at opn., pp. opn. Cantil-Sakauye, 541.) The foundations of these limits on the function were p. judicial soundly Justice of the Third District Court of explained by Sparks Appeal Schabarum v. Legislature Cal.App.4th California I on the considerations: Cal.Rptr.2d place great weight following 745]. “The of strict construction arises from the nature of Califor- principle very Thus, nia’s form of to the reserved of tripartite government. subject powers referendum, initiative and of this State is vested the legislative power ‘[t]he Const., IV, 1.) (Cal. California . . . .’ art. their people, § Constitution, restrictions the exercise of the may place upon legislative power but the courts not do so without the may violating fundamental doctrine. Judicial of clear and separation powers application constitutional restrictions on the unequivocal Legislature’s authority merely enforces the exercise of the restrictions people’s right place upon hand, On the other restraint Legislature. legislative imposed through judicial of less than would lead to interpretation unequivocal language inevitably interference with the of a coordinate inappropriate judicial prerogatives branch of standard commensurate government. Accordingly, only judicial with the doctrine is one of strict construction to ensure separation powers that restrictions on the are fact rather imposed by (Schabarum than the courts v. guise interpretation.” California 1217-1218.) at Legislature, supra, Cal.App.4th LIU, J., in this case is “whether the Concurring.—The question presented to the electorate a Legislature may pose single advisory question concerning for a federal constitutional amendment.” People’s support (Maj. opn., ante, 504.) The court answers to this narrow no yes question goes further, whether, in for another of other not “reserv[ing] day support powers here, an ballot measure would be a means of implicated permissible (Id. I fn. With this limited legislative investigation.” holding, concur. The court’s of this result includes an informative reasoning support “ I of relevant constitutional and that a survey history, agree ‘page history ” where, here,

is worth a volume of as the issue is novel and logic’ presented basic about structure and constitutional implicates questions governmental ante, 505, at New York Trust Co. v. Eisner change. (Maj. opn., quoting 345, 963, 506]; (1921) 256 U.S. L.Ed. S.Ct. cf. National Labor [65 - _ _, _ (2014) Relations Bd. v. Noel 573 U.S. L.Ed.2d Canning 538, 2550, (Noel 134 S.Ct. But Canning).) today’s opinion goes 2559-2560] or, when it invokes more investi astray accurately, expands Legislature’s in order to ballot measure at issue here. gative power uphold advisory ante, 498-500.) at This is broad and (Maj. opn., pp. theory unnecessarily could be read as an invitation for the to test the waters with future Legislature ballot measures on a wide of issues to do with advisory range having nothing a federal constitutional amendment. The Chief Justice would make that view, In invitation her use ballot explicit. Legislature may “in measures order to obtain the voters’ views with policy regard any (Conc. action that the has to undertake.” potential authority opn. J., ante, 542; accord, J., C. conc. Cantil-Sakauye, opn. Corrigan, ante, below, 550-551.) I As such use of explain wide-ranging ballot measures is not authorized our state Constitution and would electoral and are conducted potentially reshape way politics policymaking in California. We should not take liberties with the careful structure of that the framers of our Constitution have built and republican democracy to us. bequeathed

I would not on the rely Legislature’s investigative power reaching Sess.) (2013-2014 Bill result. Senate No. 1272 is an effort today’s Reg. to marshal the solemn voice of the of California of a federal constitutional amendment. Article V of the United States support Constitution state role and assigns legislatures special facilitating promot- I Bill constitutional would hold that Senate No. 1272 is a ing change. simply reasonable exercise of the under article V. Legislature’s implied power

I. Sess.) (2013-2014 Bill Senate No. 1272 is titled the Overturn Reg. 2014, 175, statute, (Stats. Citizens United Act. ch. this enacting § declared that the United States Court’s decision Supreme United v. Federal Election Comm’n 558 U.S. 310 [175 Citizens L.Ed.2d 130 S.Ct. a serious threat to “presents self-government by 876] back bans on the electoral rolling previous corporate spending process elections, allows unlimited to influence candidate selec- corporate spending tion, decisions, (Stats. debate.” ch. policy public § (e).) subd. It further declared that “Article V of the United States Constitution and of the United States of America to use the empowers obligates people constitutional amendment to correct those deci process egregiously wrong sions of the United States Court to the heart of our Supreme go (Id., (l).) and the form of subd. democracy republican self-government.” statute directed the of State to submit to the voters an Secretary 49) whether should and question (Proposition asking Congress propose whether the should a constitutional amendment ratify overturning United, 175, (Stats. and to the results to ch. report Congress. Citizens (a), (b).) subds. As all members of the court the substantive merits agree, § United and in 49 are irrelevant to the this Proposition question Citizens case. task, the federal Constitution is a difficult accom

Amending successfully 27 times our nation’s To secure for a plished only history. approval amendment, constitutional movement must convince an extraordi political number of citizens to take the movement’s aims more than nary seriously do most issues of This was they ordinary government. by design. By making of constitutional more and cumbrous” than process change ‘“unwieldy (Barron v. The Council Baltimore ordinary lawmaking Mayor City 672]), (1833) 32 U.S. L.Ed. article V of the federal Constitution [8 serves as a bulwark the whims of bare against legislative majorities Const., (U.S. ensures that rules entrenched law of the land” ‘“supreme VI) art. the considered and collective of the of the represent judgments Sess.) (2013-2014 Bill United States. Senate No. 1272 is a statute Reg. enacted furtherance of the federal constitutional amendment process.

A. V) (article Article V of the federal Constitution relevant provides part: ‘“The whenever two thirds of both houses shall deem it Congress, necessary, Constitution, or, shall amendments to this on the propose application states, of two thirds of the several shall call a convention for legislatures amendments, which, case, in either shall be valid to all intents and proposing Constitution, as of this when ratified purposes, part legislatures states, thereof, three fourths of the several conventions three fourths as the one or the other mode of ratification be may proposed by clear, . . . .” As this text makes article V roles to state Congress assigns key at the and ratification of the federal constitutional legislatures proposal stages amendment process. to the manner which state have exercised their

Challenges legislatures Smith, article V have almost been Hawke v. No. powers always rejected. (Hawke), 253 U.S. L.Ed. 40 S.Ct. the Ohio General 495] a resolution Amendment Assembly adopted ratifying proposed Eighteenth 554 A

to the federal Constitution. voter then filed a referendum for petition calling A election to the amendment. different voter special approve reject suit to state officials from with the referendum brought enjoin complying court held that the referendum could not petition. high proceed, explain “The for determination is: What did the framers of ing: only question really the Constitution mean article ratification requiring by 'Legislatures''! [in V] That was not a term of uncertain when into the meaning incorporated Constitution. What it meant when it still means for the adopted purpose (Hawke, 227.) at the ratification decision to a interpretation.” p. Subjecting referendum would violate article V’s allocation of ratification authority Lyons 231; accord, (Hawke, (1920) state at Barlotti v. 182 Cal. legislatures. p. 282]; (1920) 577 P. Prior v. Noland 68 Colo. 263 P. [189 [188 731].)

In 42 Leser v. Garnett 258 U.S. 130 L.Ed. S.Ct. 217] (Leser), the that the Nineteenth Amendment to the federal plaintiff argued Constitution was invalid because the of several states had violated legislatures state constitutional amendment. The provisions ratifying proposed high court on the that state have to exercise disagreed ground legislatures authority fit, their article V functions as see free from interference they (Leser, “limitations to be of a State.” sought imposed by 1972) (Tenn. More recent decisions are accord. Walker v. Dunn (Walker) S.W.2d 102 involved a of the Tennessee Constitution provision the state from on federal constitutional prohibiting legislature acting any amendment unless the had been elected after submission of the legislature amendment. The Tennessee Court the state Supreme upheld legislature’s Amendment, ratification of the even did Twenty-sixth though legislature not wait until the election submission. The court concluded cycle following that the state constitutional was “a limitation the General provision upon of Tennessee the exercise of its derived Assembly federally power” 106; (Walker, was invalid. see Trombetta v. Florida accordingly 1973) (M.D.Fla. (Trombetta) 577-578 similar F.Supp. [invalidating Fla. constitutional provision].) 1975) (N.D.Ill. v. Blair the court Dyer F.Supp. (Dyer), Constitution,

considered a of the Illinois as well as rules provision adopted by Illinois’s a three-fifths vote to legislature, required majority ratify amendment to the federal Constitution. Each house of the had legislature Amendment a vote of more than a approved proposed Equal Rights but less than a three-fifths The court observed that the majority supermajority. framers of the federal Constitution had a “basic that state understanding should have the and the discretion to determine for legislatures themselves how should committed to them they discharge responsibilities 1307.) the federal at The court then government.” (Dyer, p. explained because the article is not to the states but rather to the ‘“delegation [in V] bodies,” state constitutional restrictions on the designated ratifying legisla (Id. held, however, 1308.) ture’s were invalid. at The court decisionmaking p. that the vote favor of Amendment was majority ratifying Equal Rights insufficient because each house had concluded for itself that a 60 only percent 1308-1309.) would suffice. at supermajority (Dyer, pp.

Subtler at the discretion of the state when attempts cabining legislatures their article V functions have also been American performing rejected. (1984) Federation Labor v. Eu 36 Cal.3d 687 686 P.2d Cal.Rptr. [206 609], we considered various state and federal to an initiative challenges a federal balanced amendment. other advocating budget Among provisions, the initiative and benefits of state proposed suspend compensation who would not take actions to a balanced legislators specific support budget (Id. 692-693.) amendment. at We invalidated this of the initiative pp. aspect on the that it would coerce state to take actions ground legislators support (Id. 694.) of a constitutional amendment. at particular p. Similarly, (1999) v. Jones 20 Cal.4th 1045 978 P.2d Bromberg Cal.Rptr.2d we considered whether a voter initiative could (Bromberg), require 1240] future ballots for the United States to include the statement Congress “ ” Voters’ Instruction on Term Limits’ next to the names of ‘Disregarded incumbents who did not a federal term limits amendment support (Id. 1047.) session. at We held that the initiative was previous p. “impermis- 1060; coercive” and thus violated article V. see id. at sibly (Bromberg, In addition to the that article V state powers expressly delegates, legisla- tures have a crucial role mobilization played achieving popular of the amendments to the federal Constitution necessary ratify many resolutions to and to other states. recounts issuing Congress Today’s opinion numerous our nation’s back to the examples throughout history, dating ante, 502-504.) era. founding (Maj. opn., pp.

State have also established state conventions when legislatures Congress recounts, has chosen that method of ratification. As when today’s opinion conventions, submitted the Amendment to state state Congress Twenty-first across the enacted how legislatures country legislation establishing delegates (Brown, were to be chosen and when and where conventions would meet. Ratification of the Amendment to the Constitution of the United Twenty-first laws]; States 521-700 see Stats. ch. pp. [collecting 598-602 for Cal. convention to the 21st [establishing procedures ratify Amend.].) Courts have found these actions to be within the legislatures’ in broad discretion to act connection with the federal constitutional amend (See (1933) ment State ex rel. v. 127 Ohio St. 104 process. Donnelly Myers (Myers); N.E. State ex rel. Tate v. Sevier 333 Mo. 662 918] [62 (Sevier).) S.W.2d 898] above,

From the discussion it is evident that decisions this area judicial have state wide latitude out their article V given legislatures carrying functions and actions related to the federal constitutional taking reasonably amendment This befits the nature of constitutional process. judicial posture are, Occasions for the federal Constitution change. amending by design, and unusual. Each is a and solemn moment that a infrequent separate requires calibrated to the at hand. Courts have political process perceived problem that the actors to whom article V have broad recognized delegates authority discretion to address each for constitutional on an individu- proposal change alized basis. narrow role for the History precedent suggest very the federal amendment judiciary monitoring process.

B. The texts of the federal and state Constitutions do not address whether the measure on the ballot voters Legislature may place asking whether a federal constitutional amendment. we have they support Although that such an ballot measure “does not offend previously recognized Eu, 707), (American article V” Federation Labor v. 36 Cal.3d at no court has confronted the before us. But the historical use precise question connection with the federal constitutional amend advisory questions (See ment sheds on the issue here. process light Dyer, supra, F.Supp. 1303-1307 historical to illuminate the of state [consulting practice scope art. V legislatures’ powers].) of state the voters on federal constitu practice legislatures consulting

tional amendments must be understood historical context. Since the “the of our Constitution that the founding, animating principle people [is] themselves are the source of all the originating powers government.” (Arizona State v. Comm’n Independent Redistricting Arizona U.S. _, _[192 2671].) (2015) 576 L.Ed.2d 135 S.Ct. Because constitutional commitments bind future cannot be legislative majorities, undone, (U.S. on behalf of “the of the United States” easily Const, speak People the framers

preamble), repeatedly emphasized necessity consent the federal Constitution. people’s amending Constitution, At the state conventions for the federal advocates ratifying for ratification invoked the will of the as the sole repeatedly sovereign for its terms. James Wilson remarked: ground amending Pennsylvania,

557 “This Constitution . . . with a solemn and . . . :— opens practical recognition ‘We, States, union, in the United order to form a more people perfect of &c., establish do ordain and establish this Constitution for the United justice, in States of America.’ It is announced their name—it receives its political existence from their ordain and establish. What is the neces authority: they if Those who ordain and establish have the sary consequence? power, they Elliot, (2 in think and annul.” The Debates the Several State proper, repeal (1881) Conventions on the of the Federal Constitution 434-435 Adoption pp. Carolina, “[Ajltera- (Debates).) In North James Iredell observed: similarly made, tions can without be to the sense of the difficulty agreeable general . . . amendments which either shall or which people. Any Congress propose, convention, shall be such are afterwards to be submitted proposed by general states, to the of the different or conventions called for that legislatures as shall think .... this business to the purpose, Congress proper By referring saved; would be and it be legislatures, expense general, may presumed, Elliot, Debates, (4 would sense of the they speak genuine people.” [that] 177; Elliot, Debates, at see 3 at of Edmund Pendleton at p. p. [statement convention].) the Va. It is this that state ratifying against backdrop legislatures have used ballot measures connection with the federal regularly advisory constitutional amendment process. measures, recounts the of such with

Today’s opinion ably history from a multitude of states a wide examples concerning range proposed constitutional amendments from the late nineteenth to the century present ante, 507-511.) at to these measures have not day. (Maj. opn., pp. Challenges (Id. (id. 510-511.) 505), succeeded. As the court it is recognizes p. in this case to historical appropriate “put significant weight upon practice” _ 2559], (Noel 573 U.S. at S.Ct. at italics Canning, supra, p. [134 omitted)).

This robust of shared historical a common source of body practice suggests noted, As article V of the federal Constitution state legislative authority. gives a central role and federal legislatures process proposing ratifying V, constitutional amendments. Under article the function of state legislatures is to and to other states an of the state’s convey Congress expression will with to federal law of the most fundamental character. sovereign respect State, lies “the each Sovereignty ultimately supreme authority ed., 1961) (The (Cooke of the themselves” Federalist No. 39 authority (Madison)), and the ratification function to state assigned legislatures under article V is intended to elicit “a decisive expression people’s (Dillon will” v. Gloss 256 U.S. L.Ed. S.Ct. 510] electorate, (Dillon)). In an ballot measure to the a state submitting acts furtherance of its article V function legislature by vesting people’s will with a that cannot be achieved degree solemnity through opinion means, or other to others that its poll by ensuring communicating to a amendment reflects the support opposition proposed accurately ante, 518-520.) will. at It is no accident that the use people’s (Maj. opn., pp. of ballot measures state has clustered legislatures historically around for the federal Constitution. “This use of proposals amending past to inform the federal constitutional evidences a advisory questions process truth—a of the of larger recognition particular appropriateness consulting in the course of with to such polity exercising independent judgment respect (Id. 519.) foundational matters.” at Because it is particularly appropriate for a state its article V function to enlist the legislature exercising people’s will, voice as an aid to the state’s use expressing sovereign legislature’s of an measure like 49 is understood as an Proposition properly exercise of under article V. implied power under the federal Constitution has been concept implied powers

well established since M’Culloch v. 17 U.S. 316 L.Ed Maryland (M’Culloch), which held other that had the (among things) Congress 579] (Id. to establish a national bank. at M’Culloch is Although (id. often cited for its of the and clause interpretation necessary proper 411-421), the court’s discussion of that clause after the pp. high appears only has made an affirmative case for opinion already Congress’s implied power 401-411). (id. create the bank M’Culloch’s for the pp. primary arguments of the national bank are based not on the and constitutionality necessary clause but on the nature of the federal Constitution itself. proper Chief Justice Marshall the court’s that began opinion by noting although bank, the Constitution does not enumerate a to establish a “there is no which, confederation, in the instrument like the articles of excludes phrase incidental or and which that shall implied powers; requires everything granted be described. . . . The men who drew and expressly minutely adopted amendment had the embarrassments from the experienced resulting [the 10th] confederation, insertion of word the articles of ‘necessary’] [the A omitted it to avoid those embarrassments. constitution . . . probably marked, that its outlines should be its requires, only great important objects and the minor which those be designated, ingredients compose objects, (M’Culloch, deduced from the nature of the themselves.” objects Confederation, 406-407.) U.S. at Unlike the Articles of the second article of which had limited the of the of the Confedera narrowly powers Congress tion to those the 1787 Constitution was meant to “expressly delegated,” constitute a new and to the broad outlines system government provide only of its powers component parts.

M’Culloch went on to the word “bank” or say although “incorpora- Constitution, tion” does not the federal the enumerated appear powers taxes; include the “to and collect to borrow to Congress powers lay money; commerce; war; to declare and conduct a and to raise and regulate support 407.) (M’Culloch, armies and navies.” 17 U.S. at The court then supra, p. contended, that “it with reason be that a explained may great government, entrusted with such on the due execution of which the ample powers, and of the nation so must also be happiness prosperity vitally depends, entrusted with means for their execution. The it is ample power being given, the interest of the nation to facilitate its execution. It can never be their interest, intention, and cannot be to have been their to and presumed clog execution, embarrass its the most means. . . . by withholding appropriate [¶] denied, It is not that the to the powers given government imply ordinary 408-409.) (Id. means of execution.” at M’Culloch’s elucidation of pp. was based on about the nature of a implied powers “general reasoning” 411; (Id. constitution. at see id. at must never that it is p. p. forget, [“we im a constitution we are after expounding”].) Only upholding Congress’s to create the bank did the turn to plied power opinion refuting objection on, of, that the clause is a limitation rather than a necessary proper grant (Id. at congressional power. p. I

M’Culloch’s is not limited to article of the reasoning powers granted federal Constitution. M’CuUoch rests on a that each general principle power enumerated the federal Constitution other to may imply powers necessary (See the exercise of the enumerated The Federalist No. power. supra, law, (Madison) 304-305 axiom is more established pp. clearly [“No reason, authorized; than that wherever the end is the means are required, wherever a to do a is general power thing given, every particular power it, included.”].) for is decisions have confirmed necessary doing Subsequent that this of constitutional construction other than principle applies powers NASCO, (See, (1991) those Chambers v. Inc. assigned Congress. e.g., 27, 111 U.S. 43-44 L.Ed.2d S.Ct. [discussing implied powers [115 2123] courts]; of the federal American Ins. Assn. v. Garamendi 539 U.S. 414-415 L.Ed.2d 123 S.Ct. [discussing implied powers 2374] President].) I, II, Constitution, III Like articles of the federal article V also conveys as much “what is as “what is through reasonably implied” through (Dillon, 373; 256 U.S. at see id. at a rule expressed.” [“As terms, the Constitution to deal with speaks general leaving Congress matters of detail as the interests and conditions subsidiary public changing omitted)].) (fn. and Article V is no to the rule.” may require; exception context, article V courts have recognized variety implied powers. court has held that has the a time limit on high Congress place (Dillon, 375-376.) ratification of a amendment the states. proposed noted, And as when chose the state convention method for Congress ratifying Amendment, across the established the Twenty-first legislatures country 560

mechanisms which those conventions would be constituted. by challenges actions, to such state courts held that their had legislatures implied power under article V to establish conventions when elects the convention Congress Sevier, 898; Myers, (See method of ratification. 62 S.W.2d at supra, p. supra, 918.) 186 N.E. at p. state,

Here the contends that of this Legislature’s briefing ‘“[f]or their means under article V of the federal Proposition represents only [i.e., Constitution to be heard on this momentous whether question Citizens United should be overturned constitutional Elections on amendment]. ballot have been held a wide of other states to advisory questions variety ascertain and to the will of the voters as to whether the U.S. formally convey Constitution should be amended various and the courts have respects, the submission of such measures to the electorate. The repeatedly upheld California is likewise entitled to seek this from the voters as Legislature input a matter ‘incidental and to its constitutional ancillary’ responsibil- I amendments to the U.S. Constitution.” would hold ity ratify proposed that the has under article V to submit Legislature implied power Proposition 49 to the electorate because the use of an ballot measure uniquely serves to aid the of California’s will. Legislature’s expression sovereign I

As the rest of this does not have explain opinion, under the California Constitution to submit general authority advisory ques if tions to the electorate. But even this means the has no authority under state law to submit an measure on a federal constitutional (see amendment dis. such a limitation must to the federal opn., post), yield (ante, that article V confers on the As discussed above authority Legislature. J., 553-555), conc. C. at courts have opn. Cantil-Sakauye, pp. consistently limitations, limitations, invalidated state law state constitutional on including (See a state exercise of its federal functions under article V. legislature’s Leser, 137; Hawke, 231; 258 U.S. at 253 U.S. at supra, p. supra, p. Dyer, 1307-1308; Trombetta, at at supra, F.Supp. pp. supra, L.Supp. 577-578; Walker, 498 S.W.2d at p. Because article V’s is not to the states but rather to the ‘“delegation 1308), bodies” state designated ratifying (Dyer, supra, L.Supp. ‘“havethe and the discretion to determine for themselves legislatures how should committed to them they discharge responsibilities (id. 1307). federal It be that certain elemental government” may precepts of state law—for state constitutional that create a example, provisions and define its remain when a state legislature membership—must operative exercises federal functions. But this case does not concern the legislature character or as the constituted and legitimacy duly properly of California. This case concerns the source and functioning legislature exercise, of a substantive that the seeks to and as validity power Legislature not, this court has “a state restrictions recognized, may through imposed by law, state interfere with a state to fulfill its function and legislature’s ability as Article V of the federal Constitution.” responsibilities contemplated by 1058; Leser, 20 Cal.4th at see 258 U.S. at (Bramberg, supra, p. p. state ‘“a federal function derived from the Federal legislature exercising [a Constitution . . . transcends limitations to be the any sought imposed by State”].) if of a even state law does not authorize the Accordingly, electorate, to submit 49 to the the do Proposition Legislature may so as an exercise of its under article V. implied power

II. above affirms the broad latitude to act analysis Legislature’s context of the federal Constitution and unique amending amply justifies narrow Yet the court’s rests not on the today’s holding. opinion only role under article V but also on ‘“the to Legislature’s Legislature’s power ante, at This doctrinal move investigate.” (Maj. opn., p. unnecessarily if calls into the narrowness of question today’s holding—for investigation by use of an ballot measure ‘“is as a aid to the advisory permitted necessary 499), (id. if execution of other at and an ballot legislative powers” p. advisory measure is so as ‘“a nexus exists between the matter permissible long and some action the has to investigated potential authority 500), (id. undertake” at then what is to of an distinguish validity ballot measure a federal constitutional amendment from advisory concerning of such a measure issue of validity concerning any ordinary public (id. the court no view on that policy? Although expresses question 11), fn. the Chief Justice there is no distinction at all. She would hold says that the use ballot measures ‘“with Legislature may regard any undertake,” action that the has potential authority including (Conc. matters unconnected with article V issue.” of ‘“completely any opn. J., ante, 542, 544.) C. Cantil-Sakauye, I find the court’s reliance on the unpersuasive Legislature’s investigative as well as the Chief Justice’s view of the expansive Legislature’s outset, I to use ballot measures. At the acknowledge Constitution, ‘“[ujnlikethe federal which is a grant power Congress, California Constitution is a limitation or restriction on the of the powers (Methodist Sacramento v. 5 Cal.3d Legislature.” Hosp. Saylor 161].) 488 P.2d ‘“The is vested with the whole Cal.Rptr. legislature of the state and deal with within the legislative power may any subject of civil unless it is restrained scope government provisions constitution, and the that the is within the presumption legislature acting constitution holds until it is made to what it is good appear particular (Macmillan constitutional limitations.” Co. v. Clarke 184 Cal. violating 1030].) 496-497 P. But limitations on the need Legislature’s power not the state Constitution exist appear “expressly”; they may “by necessary (Methodist I at Below it is a implication.” Hospital, explain why of our Constitution’s text and that the necessary implication history Legisla ture lacks to submit measures to the electorate. general authority advisory Whether its or other under state exercising investigative power any power law, the not alter the structure of Legislature may statutorily government established our Constitution.

A. We addressed the issue of ballot measures American previously advisory Eu, Federation Labor v. 36 Cal.3d where concerned citizens of on the ballot a resolution sought place nonbinding urging Congress a federal balanced amendment and of propose budget directing Secretary State to for a constitutional convention. We invalidated this apply advisory ballot measure on the that it was not authorized the initiative ground (Id. 714-715.) that the initiative “is the power. Observing electors to statutes and amendments to the Constitution and to propose adopt Const., II, (Cal. (a)), them” art. subd. we that a reject explained § measure that a resolution or declaration of is one that merely adopts policy Eu, 715). (American “fails to a statute” Federation Labor v. adopt of This makes clear that a citizen-initiated measure precedent advisory asking tax, the electorate whether the should increase the for gasoline would be unconstitutional. The court American Federation example, of Labor v. Eu reasoned that the initiative does not authorize the people reflection, an measure on the ballot. But a moment’s it place advisory upon is evident that our decision structural suggests deeper principle. citizens who an increase tax

Suppose support gasoline qualify initiative for the election ballot: X. The following general “Proposition of the State of California enact the statute: People hereby following election, next of State shall on the ballot an general Secretary place of California whether the advisory question asking If should increase the tax on retail sales of 5 cents gasoline by per gallon.” X were to would the statute it enacted be constitutional? Of Proposition pass, not; otherwise, course our decision American Federation Labor v. Eu would be evaded and reduced to a virtual But the easily nullity. invalidity X does not arise from the fact that it is an ballot Proposition advisory measure like the initiative at issue American Federation advisory measure; X Labor v. Eu. is not an it enacts a statute that Proposition directs the of State to measure on the ballot at the Secretary place next election.

563 X of must be reference to its invalidity Proposition explained by substance, statute, X not its form. enacts a the statute it Although Proposition enacts asks voters to do lack to do: to a something they authority adopt resolution with no their official as the binding legal consequence capacity of California. We this American Federation people recognized principle of Labor v. Eu when we said the of the balanced initiative provisions budget and mandate the a resolution which does not “adopt, Legislature adopt, California law and constitutes one which change only step process might amend the federal Constitution. Such a resolution is not an eventually exercise of reserved to the under the California legislative power people Eu, (American Constitution.” Federation Labor v. 36 Cal.3d at supra, of words, 694.) In other the California Constitution reserves to the the p. people referendum, to enact laws initiative or but it does not reserve to the power by resolutions. power adopt nonbinding invalid, If X is then an identical statute enacted Proposition would be invalid as well because electorate’s Legislature legislative “[t]he is coextensive with the of the to enact ‘generally ” statutes.’ Government v. (Professional Engineers Kempton California 1016, 814, 226]; (2007) 40 Cal.4th 155 P.3d see Santa Cal.Rptr.3d [56 220, (1995) 11 Clara Local Auth. v. Guardino Cal.4th County Transportation 225]; 902 P.2d v. Cal.Rptr.2d Legislature Deukmejian [45 17].) In Cal.3d 669 P.2d this conclu Cal.Rptr. resisting “ sion, the court cites our ‘the reserved of initiative recognition powers ” and referendum do not all actions of a encompass possible legislative body.’ ante, Eu, American Federation Labor v. (Maj. opn., p. quoting of 708.) 36 Cal.3d at But we made that statement the context of that the but not the has the explaining Legislature, citizenry, authority “a resolution which the wishes of the adopt reject merely expresses Eu, (American Federation Labor v. enacting body.” Nothing American Federation Labor v. Eu that the has suggests that the lacks to measure on the ballot. authority citizenry place X from its enacted twin would Distinguishing Proposition legislatively us to hold that our state Constitution does not authorize the require citizenry, initiative, measure, on its own to vote on an but does authorize the to do so when directed Yet it seems dubious to citizenry Legislature. that our Constitution over the say privileges ordinary lawmaking process initiative as a for the exercise of qualification process gatekeeper people’s all, their voice. After is the putative advisory agent not the other around. people, way below, I X

As more is not that the explain fully infirmity Proposition electorate, as to the has authorized the electorate to vote opposed Legislature, on a resolution. It is that the reserved to themselves the people, having only in of initiative and referendum while the all other powers vesting Legislature Const., IV, 1), (Cal. of this State” art. have no constitu- “legislative power § tional a resolution. Such cannot be conferred authority adopt authority by statute, whether enacted the or their by people by representatives.

B. ratified, IV, When the California Constitution of 1849 was article section in “The of this State shall be vested a Senate and provided: legislative power which shall be the of the State of Califor Assembly, designated nia .. . .” This affirmed what the had language people accomplished by the The the of this forming Legislature: people gave up “legislative power (Ibid.) State” and vested it their elected The duly representatives. only were retained the exceptions provided expressly: people constitutional amendments and approve reject proposed proposed assump Const, VIII, X.) (Cal. tions of debt. of arts. the 1849 By ratifying Constitution and the the of California established creating Legislature, divested themselves of to exercise certain forms of republic. They authority authorized the to exercise those on their power, they powers behalf, and restrained their to take those back without they ability powers the state Constitution. Most amending prominently, people gave up to enact laws and vested that That is authority authority Legislature. the initiative and referendum had to be established constitutional why by amendment 1911 and does not have why authority (See submit statutes for the to enact ballot. at ordinary citizenry by post, 565-566.) pp. (what I from the to enact laws will call

Apart “lawmaking power,” as from the more term what distinguished encompassing “legislative power”), were included to their powers people’s grant “legislative power” IV, under article section of the 1849 Constitution? The basic representatives contours of the are established its historical roots legislative power by Ex D. O. 29 Cal. 395 powers parliament. parte McCarthy established, “A we when be (McCarthy), explained: legislative assembly, comes vested with all the and which are and powers privileges necessary incidental to a free and unobstructed exercise of its functions. appropriate Constitution; These are derived not from the on the powers privileges arise from the creation of a . . . . What contrary, they very legislative body [¶] ... a takes force and effect of powers privileges legislative assembly creation, its are to be ascertained a reference to the common parliamentary (Id. treatise, law.” We then cited Luther Stearns Cushing’s Elements of the Law and Practice of Assemblies the United Legislative America, States of for and incidental” examples “necessary powers. 403-404.) (McCarthy, here,

As relevant one of the traditional characteristic of a powers parlia- A was the to resolutions. resolution mentary body power adopt nonbinding (American the wishes of the Federation Labor v. “expresses enacting body.” of Eu, 708.) 36 Cal.3d at As “When the house supra, p. Cushing explained, it, with reference to before either expresses any opinion, any subject public time, (not or its will to do at a incidental to the private; something given business); course of or declares its orders ordinary adoption general cases, in in relative to its all these it itself the form of proceedings; expresses resolutions.” Elements of the Law and Practice of (Cushing, Legislative States, 314, Assemblies the United at supra, p. par. Historically, resolutions served as a means for one chamber of a to legislative body chamber, an directed at another for a committee to an express opinion express (id. 778), directed at the chamber as a whole at for the opinion legislature (id. to an directed at the executive or the “crown” express opinion 905), or for a state to an directed at the par. legislature express opinion Elliot, Debates, (see, federal 540-545 government e.g., pp. [Ky. 1799]; 1798]). resolutions of 1798 & id. at 528-529 resolutions of pp. [Va. (Cal. In of this State” vesting legislative power “[t]he Const, IV, 1), art. their to exercise the people gave up authority § is, resolutions—that their official power adopt express opinion as the of California—and restrained their capacity people they authority take that back. That could not be returned to or shared with the power without a state constitutional amendment or some other source of people such as article V of the federal Constitution. Under the California authority Constitution of were not authorized to people adopt nonbinding resolution, as were not authorized to enact law. just they ordinary

As the our state Constitution is now more Legislature’s briefing explains, democratic and less than it was 1849. amid republican widespread that the had become Gover perception corrupt self-serving, nor Hiram Johnson and a wave of were elected on the representatives the state Constitution to some back to the promise amending give (Cal. Com. on Initiative: people. Campaign Linancing, Democracy by Shap 36-42.) California’s Lourth Branch of Government Those ing ratified, and the amendments to the Califor representatives proposed, people nia Constitution that created the broad outlines of our current structure of IV, Article section of the California Constitution now government. pro vides: “The of this State is vested the California legislative power which consists of the Senate and but the reserve Assembly, people to themselves the of initiative and referendum.” powers from introduced

Importantly, departures republican government were and circumscribed. “When the established the specific Legisla- ture, to it the full breadth of their they conveyed sovereign legislative powers. in When the initiative restored to they adopted power they [Citation.] ante, 516.) themselves a shared of that only piece power.” (Maj. opn., p. ‘“reserved” to the did not all actions powers people ‘“encompass possible limited, II, of a Those are under article to the legislative body. powers of ‘statutes.’. . . does not include a resolution which adoption rejection [I]t (American the wishes of the . . . .” Federation merely expresses enacting body Eu, before, 708.) Labor v. 36 Cal.3d at After as the supra, p. people of (Id. retain no to a resolution. a resolution is authority adopt [‘“Such not an exercise of reserved to the under the legislative power people Constitution.”].) in California That continues to reside the power exclusively and it cannot be restored to the without a constitutional Legislature, people amendment. The not ask the to vote on an Legislature may people measure because the not authorize the to Legislature may statutorily people exercise a that the have vested the power people constitutionally Legisla ture and divested from themselves. course,

Of this does not mean the not the Legislature may investigate halls, views of the committee town citizenry through hearings, opinion polls, constituents, media, with social other information- meetings myriad mechanisms aided modern It means the gathering technology. just Legis lature not use the ballot for this The framers of the 1849 may purpose. Constitution knew well the ballot’s and the singular political significance of the for which it could be used. The importance circumscribing purposes ‘“election,” ‘“electors,” words and ‘“ballot” the charter 69 appeared original times. these three which the Collectively, usages contemplated only ways (Cal. ballot would be to of state debt employed: approve assumption Const, (id., VIII), art. state constitutional amendments art. ratify X), and to elect constitutional officers. The terms of our state Constitution continue to authorize use of the ballot for the solemn and today legally tasks of officials and limited and binding electing public approving specific of laws. our Constitution use of the statewide types Nothing contemplates ballot—the traditional means for solemn will—to expression people’s on a resolution. gauge public opinion ‘“purely precatory” nonbinding Eu, (American Federation Labor v. 36 Cal.3d at sum, the full legislative power—i.e., range parliamentary power, to make laws and the resolutions—was including power adopt vested and divested from the the 1849 Constitu- people IV, tion. That is the 1911 amendment to article section of the California why Constitution was needed to authorize the not people, just Legislature, exercise And that is do not have general lawmaking power. why people to vote on ballot measures. No constitutional general authority amendment has returned that to the or authorized the Legisla- ture to do so.

C. vested, divested, This of how has been and understanding legislative power shared our constitutional draws further from the throughout history support indirect initiative that existed between 1911 and 1966. addition to process referendum, to the of initiative and the 1911 reserving people powers IV, amendment to article section of the California Constitution for provided initiatives, “direct” and “indirect” with the “indirect” initiative autho- process ballot, initiative, to on the a voter rizing Legislature place alongside Const., (Cal. alternative measure for the electorate to or approve disapprove. IV, art. former as amended Oct. legislature may reject § [“The measure so initiative a different one on any proposed by petition propose .”].) the same . . . of this subject specific authorizing language provi- sion—“The . . . a different on the same legislature may propose [measure] if have been had subject”—would unnecessary Legislature already gen- eral to submit statutes for the to enact ballot. The power ordinary people by indirect initiative confirms that the vested people originally Legislature laws, and divested from themselves the to enact and then later power ordinary authorized the to share a limited of that vested with Legislature portion power the electorate. No similar measure has ever authorized the to Legislature share the resolutions with the electorate. It power adopt nonbinding remains a that the have vested and divested power Legislature from themselves.

The Center for State and Local Government Law at the University Law, brief, California an amicus curiae contends Hastings College that the has had to submit statutes for the Legislature always general power and, lesser,” voters to enact because includes the also greater power “[t]he curiae, has to submit measures. to amicus the 1911 power According indirect initiative rather than authorized the provision “acknowledged” Legis- lature’s to submit to the voters an alternative measure on the same power as a citizens’ initiative. For this amicus curiae relies on a subject proposition, (Commission) the California Constitution Revision Commission report by 1966 and 1968 revisions that included elimination of the indirect discussing initiative. The “Introduction” to the said: “The can exercise report all of the State’s and can act unless the legislative power upon any subject has been to the federal or exercise of the delegated government power is forbidden the State or Federal Constitution. It therefore is by unnecessary the Constitution which the grant power Legislature inherently possesses. however, It is constitutional appropriate, prohibit compel by provision certain exercises of the inherent Our Legislature’s power. [Citation.] [¶] Constitution is encumbered this to the type unnecessary grant which the is to enact by provisions competent statute. the rule of inherent the Commission Relying upon legislative power, often has formulated recommended revisions which free our Constitution cone, 7; (Com., (1968) from these encumbrances.” Revision see Proposed J., ante, of C. 543-544 & fn. opn. Cantil-Sakauye, But this which states the Commission’s of quotation, general objective to the does not illumi- eliminating unnecessary grants power Legislature, nate whether the revision the indirect initiative was an specific eliminating instance of As the eliminating unnecessary grant power. Legislature’s notes, the Commission’s rationale for the indirect briefing specific eliminating initiative was that a revision had ‘“reducedthe separate proposed percentage for an initiative statute from 8 to 5 the same as signatures required percent, for the indirect initiative. The indirect initiative adds an required merely additional to the same result that can be under step accomplish accomplished Further, the initiative the indirect initiative has been used four generally. only times, and once it was determined that the only successfully. Accordingly, indirect initiative could be deleted without the impairing right (Com., to laws the initiative Revision propose through procedure.” Proposed 52; 1008, (2010) see v. 47 Cal.4th 1040 & fn. 55 People Kelly 733, 222 P.3d of elimination of indirect Cal.Rptr.3d [discussing history 186] initiative].) in this that the indirect initiative Nothing explanation suggests extant to submit provision merely acknowledged Legislature’s statutes to the electorate. The is most read to provision naturally grant it did not have. Legislature power previously II, Amicus curiae also contends that article section of the California Constitution, Constitution—“No amendment to the and no statute to proposed initiative, the electors or that names individual to Legislature by any office, hold or names or identifies to any any private corporation perform any function or to have or be submitted to the electors or any power duty, may added)—confirms (italics have effect” that the has any authority statutes on the ballot. But this became of our place ordinary provision part Const., IV, (Cal. Constitution art. former as Nov. adopted § 8, 1976), renumbered June when the Legislature possessed Moreover, since, of indirect initiative. well before 1950 and ever our state Constitution has to submit to the statute required people any Const., XVI, 1) (Cal. that issues state bonds above a certain amount art. or § II, 10, Thus, (id., (c)). that amends or an initiative statute art. subd. repeals § II, even after the indirect initiative was eliminated article section 12’s reference to a “statute to the electors has proposed Legislature” served to ensure that statutes state debt and statutes authorizing amending initiative statutes do not name individual to hold office or repealing any function or It does not neces- any private corporation perform any duty. that the has statutes sarily imply general authority propose Czesla, (Cf. to the voters. Review of Article IV of the Cal. Constitution II, 12’s resulted from the enact- prohibition “apparently [art. § in ment 1948 of an initiative constitutional amendment which made the director”].) Director of Social Welfare an elective office and named the first Most the its does not claim it has the telling, Legislature briefing power to submit statutes to the electorate. When on this at ordinary pressed point oral counsel for the declined to assert the argument, Legislature Legislature has such This hesitation undermines the broad contention the power. that no action of the be found “incon- Legislature’s briefing Legislature may Constitution, sistent with the ‘structure’ of the without it some violating contained therein.” Even our Constitution does not explicit prohibition though the from statutes to the explicitly prohibit Legislature submitting ordinary electorate, the refuses to claim it has such authority. referendum,

And for reason: from the of initiative and good Apart powers the have vested the people lawmaking power Legislature, thereby divesting themselves, it from and the not that to the Legislature may delegate without constitutional authorization. Such authorization has people specific Constitution, occurred at various times various of our through provisions that when our Constitution shared demonstrating contemplates lawmaking between the and their it has said so authority people representatives, explic- Article I’s declaration that have the to instruct their itly. people right “[t]he is another that authorizes shared account- representatives” provision expressly Const., I, 3, (Cal. (a); art. subd. but cf. dis. ability lawmaking. opn., post, § 584-585 to instruct cannot the pp. people’s right empower [the to submit that the themselves cannot on the advisory questions people place authorization, ballot].) Absent such the not alter Legislature may statutorily the constitutional allocation of between the lawmaking power people their And the same not representatives. by logic, Legislature may authorize the resolution because that statutorily people adopt nonbinding is vested and not retained constitutionally This with its clear lines of is not the people. arrangement, accountability, only to structure a But it is the way well-functioning lawmaking process. way of California have chosen.

D. The Chief Justice contends that ballot measures have been long localities, used states and and that this historical practice suggests J., ante, (Conc. such measures are valid. C. legally opn. Cantil-Sakauye, 524-535.) But it is unclear how from other probative examples (and are. For one the “scores” how “scores” are jurisdictions thing, many there “of initiated ballot measures that have really?) legislatively voters, been submitted to statewide both California and throughout 549-550, 39), (id. from this nation’s fn. do not seem country inception” pp. all that when considered the context of state constitutional impressive that, addition, histories several thousands of aggregate, span years. we cannot assume that the constitutions and laws of the several states—with texts, structures, their and histories—are uniform with to the unique respect issue before us. For one of the California Consti example, important aspect tution is that the the initiative and referendum people, by ratifying provisions 1911, themselves, returned but not the part legislative power Eu, (American resolutions. Federation Labor v. adopt 694, contrast, 708.) Cal.3d at at least three states from which the pp. By Chief Justice draws authorize voters to measures on examples place advisory Alaska, 1985) (Yute (Alaska the ballot. Air Inc. v. 698 P.2d McAlpine 1175-1177; (1997) v. Cenarrusa 130 Idaho 609 P.2d Simpson [944 Moreover, 1376-1377]; 5/28-9.) the Chief Justice identi Ill.Comp.Stat. fies one state court that has ever addressed an issue like the only high 202].) (Cranmer one before us. v. Thorson 9 S.D. 149 N.W. But South Dakota’s constitutional amendment precedent predated provid referendum, then, for the of initiative and and since the South ing Dakota Court has been divided on whether the Supreme narrowly legisla (S.D. ture has to submit to the voters. v. Kundert authority questions (Wyatt 186, 191; Wuest, J., 1985) (dis. 375 N.W.2d id. at opn. joined by Fosheim, J.).) C. What is clear is that historical scant practice provides support California

for the broad thesis that the has general authority place measures on the statewide ballot. the Chief Justice cites a advisory Although measures, wide of local such measures are range advisory specifically Code, 9603) (Elec. authorized statute and do not illuminate the constitu- § tional here. As to the seven of statewide question presented examples Justice, measures identified the Chief three advisory implicated I, role under article section or article V of the federal Legislature’s Constitution of the state’s will the election expressing sovereign concerning ante, 507-508.) (See of United States Senators. That leaves maj. opn., four measures that did not concern function to the advisory any assigned the federal Constitution. Legislature by measures, those four the Chief Justice on Among places greatest emphasis “ ” an 1879 measure that asked the electorate whether it was ‘[f]or’ “ ” 5, 1, (Stats. Chinese ch. Accord ‘[a]gainsf immigration. § Justice, measure, to the Chief this which resulted a 96

ing percent majority (Certificate ‘“An Chinese of Vote on Act to voting against immigration Ascertain and the Will of the of the State of California on the Express People (1879)), of Chinese shows that the to the Subject Immigration” delegates 1878-1879 Constitutional Convention assumed that the ‘“obviously Legisla ture and retained to submit such an measure to possessed authority

571 J., ante, 536; (conc. the statewide voters” of C. at see opn. Cantil-Sakauye, p. id. at this id. at 544 id. at 546 p. [reiterating point]; p. [again]; p. [and again]).

But this should not our constitutional As the Chief example guide inquiry. Justice the 1879 measure was motivated ‘“virulent acknowledges, advisory J., ante, 536), (conc. and racist views” of C. at opn. Cantil-Sakauye, p. this court observed that sentiment was a recently major ‘“[a]nti-Chinese (In for the California Constitutional Convention of 1879” re impetus Chang 1169, 1, 288]). (2015) 60 Cal.4th 344 P.3d this Cal.Rptr.3d Against historical it is fanciful to that the constitutional backdrop, posit delegates—a of whom were members of the whose large portion Workingmen’s Party, (ibid.)—had was ‘“TheChinese Must Go!” a well-considered view of slogan of the anti-Chinese measure. constitutionality advisory a decade after ratification of the Fourteenth Amendment to the Scarcely federal Constitution—section of which no state shall says ‘“deprive any life, law; or without due of nor person liberty, property, process deny within its of the law”—those del any person jurisdiction equal protection Chinese) (titled XIX wrote the infamous former article into the 1879 egates Constitution, Chinese, expressly prohibiting employment authorizing and localities to remove the Chinese from their jurisdictions, their all the directing ‘“discourage immigration by Const., XIX, 1879; (Cal. means within its art. as ratified see In re power.” 1172-1173.) at The also constitutionalized the denial of Chang, pp. delegates Const., II, 1, (Cal. to vote to “native of China.” art. as ratified right any § 1879.) Given the fact that the anti-Chinese measure received “the advisory J., (conc. of the constitutional C. blessing delegates” opn. Cantil-Sakauye, ante, 536) I at these other unconstitutional p. alongside blatantly provisions, do not think the 1879 sheds much on the example light constitutionality reason, I statutes measures on the ballot. For the same placing advisory would not to the submission of another assign any weight Legislature’s anti-Chinese measure whether advisory asking English literacy 704-705.) (Stats. should be a for ch. requirement voting. measure, mechanism, fact that an ballot as a “is not procedural (conc. its nature or offensive” of Cantil- invariably discriminatory opn. J., ante, 39) C. fn. does not we should think Sakauye, p. explain why who did submit measures that were discrimi legislators patently 1172) (In an era of re natory during “xenophobia” Chang, thought cared much about the of such measures. constitutionality

The two are a of 1933 measures voters remaining examples pair asking whether the should divert tax funds to down debt on gasoline pay 435, 3, (Stats. bonds. ch. The voter outstanding highway § that the measures an alternative means of guide explained proposed paying voters, (and down bond debt that had been the as was previously approved by is) (Ballot still article XVI of our state Constitution. required by Pamp., 10, 1933) 11.) (June Elec. favor of 9 & The Special argument Props. p. well have believed that the alternative like Legislature may payment plans, debts, Const., XVI, (Cal. the voter art. original required approval. § not create debt of over a certain amount unless a law [Legislature may enacted a two-thirds vote both houses and of by approved by majority voters and means” for of interest and “provide[s] ways payment principal.].) event, tested; In the of these measures was never were any legality they election, on the ballot one month before the and both were placed just xc, (Stats. defeated at the Submitted to soundly polls. p. Propositions Electors, Defeated, 1933) (June Vote of Election Measures Special 9, 10.) Nos. sum, the uses of ballot measures Legislature’s past advisory hardly J., (conc.

demonstrate a ‘“well of C. accepted” practice opn. Cantil-Sakauye, ante, 535), at let alone one whose has been p. constitutionality implicitly notes, affirmed. As Justice Chin ‘“themost recent of these measures advisory occurred over decades before the of modern eight ago, long development Internet, and other methods of the polling techniques, ascertaining 587.) (Dis. If wishes matters.” at people’s political opn., post, p. anything, of historical with none the last 80 tends to paucity examples, years, cast doubt on the existence and claimed here. validity power

E. No member of the court that American Federation Labor v. Eu suggests was decided or that our that case be evaded an wrongly holding may initiative statute that directs the of State to an Secretary place advisory ‘“if, measure on the ballot. But under today’s opinion rejects argument Eu, American Federation Labor v. 36 Cal.3d are laws, limited to on the ballot then the must placing only proposed ante, be too.” that the are (Maj. opn., Noting Legislature’s powers (American broader than the initiative Federation Labor v. people’s Eu, 708), the court contends that the broader Legislature’s powers authorize it to a statute measure on the ballot even pass placing where, I not do so initiative. with this thesis though people may agree here, as is its under article V of the exercising implied power I federal Constitution. But do not when it comes to ballot agree measures on matters of ordinary public policy. court, like the does not rest its “on the Legislature, reasoning statutes, that the includes the to enact

syllogism legislative power statute, Bill Senate No. 1272 takes the form of an enacted and thus for that reason alone the bill and 49 are within a constitutional source of Proposition ante, Instead, the court the power.” (Maj. opn., accepts Legisla ture’s claim that a to nonlawmaking power—the power investigate— the to ‘“enact a statute encompasses authority placing advisory question (Ibid.) before the voters.” This invocation of the is investigative power for several reasons. unpersuasive matter, Bill

As an initial it is odd to characterize Senate No. 1272 Sess.), (2013-2014 which the labeled the Overturn Citizens Reg. 1), (Stats. United Act ch. as an effort to the investigate § electorate’s views. The include declarations that Citi Legislature’s findings (Stats. zens United a serious threat to ch. ‘“presents self-government” 175, 2, (e)); subd. Post-ABC News February Washington poll § ‘“[a] (id., in found that 80 of Americans Citizens United” percent oppose ruling (k)); subd. and that ‘“ArticleV of the United States Constitution empowers of the United States of America to use the obligates constitutional amendment to correct those deci process egregiously wrong sions of the United States Court that to the heart of our Supreme go (id., (l)). and the form of subd. This democracy republican self-government” mobilization, is the not and it fits comfort language public investigation, in within the role under article V ably Legislature’s marshaling vigorous solemn of California’s will on whether to amend our expressions sovereign nation’s basic charter. It blinks to that the reality suggest Legislature—plainly aware of that broad of Americans are opinion polls showing majorities Bill to United—enacted Senate No. 1272 order to opposed Citizens views. investigate citizenry’s

More the court’s invocation of the fundamentally, investigative power this context is a novel of how we have construed this expansion historically Our case law on the consists of power. investigative power uniformly committees, to establish disputes concerning Legislature’s prerogative boards, commissions, and and to vest such entities with agencies, authority evidence and and to hold witnesses compel testimony noncompliant Those issues are far afield from the before us. As a review contempt. question shows, of the cases this court’s treatment of the nothing Legislature’s it to submit an investigate suggests encompasses authority measure to the electorate. 29 Cal. editor was held McCarthy, supra, newspaper contempt the state Senate and after he refused to answer jailed questions posed by the Senate the course of its investigating charges bribery against (Id. detention, 397-399.) members. his petitioner challenged the Senate lacked We claiming investigate bribery charges. the claim and held that the Senate’s to included the rejected power investigate in to from witnesses and to hold power compel testimony persons contempt (Id. 403-407.) for refusing testify. pp. (1929) (Battelle),

In In re Battelle 207 Cal. 227 P. the state [277 725] Senate a resolution a committee of senators to adopted authorizing investigate a cement manufacturers. The commit- possible price-fixing conspiracy among tee witnesses and them to certain records and subpoenaed required bring control, documents within their but various witnesses refused. The Senate in a resolution the witnesses The was adopted holding contempt. petitioner in arrested and habeas relief this court. the sought corpus addressing claims, instances, “in in we said that order to the petitioner’s many prepara- tion of wise and laws the of of some sort must timely necessity investigation exist as an incident and to the exercise of indispensable auxiliary proper (Id. at We further that “the inherent and legislative power.” explained in in bodies to conduct aid auxiliary power reposed legislative investigations in of has been held to with it the prospective legislation already carry cases to the attendance of witnesses and the proper require compel of books and means of and to institute and production papers by legal process in to the extent of order to carry punishment contempt proceedings compel the attendance of such witnesses and the of such production documentary evidence as be called for the course of such may legally proceedings, it, whether conducted the or a branch of legislative body directly (Ibid) constituted committees thereof.” We through properly rejected claim that the use of such meant the was compulsory process (Id. function violation of the exercising judicial separation powers. 241-244.) But we relief on the pp. ultimately granted petitioner ground that the order did not how the contempt adequately explain questions refused to answer were to the issue the was petitioner pertinent 246-247.) (Id. at Like Battelle had to do investigating. McCarthy, nothing with ballot measures.

The other cases cited are far afield. Both today’s opinion similarly (1939) v. 13 Cal.2d 513 P.2d Int. Swing Riley Special Assembly [90 313] (1939) (Southard) Committee v. Southard 13 Cal.2d 497 P.2d [90 304] addressed issues commit concerning proper appointment legislative tees. Parker v. 18 Cal.2d 83 P.2d held that a statute Riley 873] the California Commission on Interstate did not violate creating Cooperation that case separation powers. key passage discussing “ context and substance to this ‘The ascertainment of investigate gives power: facts its essence is not a function. It is legislative simply ancillary It be divers While it be done legislation. may accomplished ways. may itself, it is a not responsibility infrequently placed upon committees and individuals. . . . illustrations of this also are Frequent practice found boards or commissions. . . . The ascertainment of respecting permanent facts for is within the of the pertinent legislation power lawmaking depart- ment of When a has a to do an act it must government. legislative body right be allowed to select the means within reasonable bounds. It is not precluded from incidental which it exercise itself aid of its delegating powers may functions. . . . Familiar methods are the results of primary by appropriating others, studies made itself or an already by by conducting inquiry through members, a committee of its or commission or board by utilizing existing ” (Id. 91.) to make and the results of a research.’ Amid these report committees, boards, commissions, studies, research, mentions of there is not the hint that the submit an measure to slightest Legislature may the electorate to its pursuant investigative power. of the court’s has an even dimension. As novelty reasoning deeper

noted, neither the nor member of this court has invoked the any as its source of for enact- Legislature’s ordinary lawmaking power authority Sess.), (2013-2014 Bill Senate No. 1272 even a enacted ing Reg. though duly to, order) (as statute a mere committee resolution or executive is opposed say, to 49 on the ballot. The court instead resorts to the required place Proposition incidental to Yet case cited Legislature’s investigate. every court of the incidental regarding scope Legislature’s powers, Legisla- Battelle, (See ture acted without a statute. 207 Cal. at passing supra, 230-240; Southard, 498-502; 13 Cal.2d at v. pp. supra, pp. Swing Riley, 514-517; 397-399; 13 Cal.2d at 29 Cal. at pp. McCarthy, supra, pp. 89-91.) Parker v. 18 Cal.2d at holds for the Riley, supra, Today’s opinion first time that the is a font of Legislature’s investigative power authority, itself from its for the separate apart ordinary lawmaking power, enact statutes. This that the enact certain holding implies Legislature may statutes to its that it could not enact pursuant investigative power pursuant all, if its After lawmak- ordinary lawmaking power. Legislature’s ordinary case, were sufficient this the court’s would ing power presumably analysis have there. stopped

But to that the itself a to enact say investigative power encompasses power statute, whether or not the statute could be enacted to the pursuant to contravene the settled Legislature’s ordinary lawmaking power, appears that the under our state principle Legislature’s ordinary lawmaking power Constitution is Assn. v. Matosantos “plenary.” (California Redevelopment 580].) 53 Cal.4th 267 P.3d other Cal.Rptr.3d words, “[f]ull,” is and “en- Legislature’s lawmaking power “complete,” 2009) (Black’s (9th tire.” Law Diet. ed. col. This court has never held that the under the California Constitution to make Legislature’s authority laws be other than its and we may grounded anything lawmaking power, have never that the incidental suggested investigative power any course, subsumes a to make laws. Of portion Legislature’s power exercise its laws that Legislature may lawmaking power pass accomplish Code, 10600-10601.5; id., (See, aims. Ed. investigative e.g., §§ § (a) subd. state of Education to maintain an information [requiring Dept, current, and reliable information to system complete, relating “make[s] education available to the But that is different from Legislature”].) quite that the itself authorizes the saying investigative power Legislature pass such laws. cautions that is not unlimited”

Today’s opinion investigative power ‘“[t]he ante, 499) at and holds that this authorizes an (maj. opn., p. only ballot measure as ‘“areasonable and lawful means of advisory assisting 523). (id. in the of its article V-related functions” at Legislature discharge p. Whether this can be limited to the article V context remains to be holding If seen. all that is is reasonable connection” between the required ‘“any measure and the exercise of it advisory Legislature’s potential any power 521), (id. I then find it difficult to discern lawfully possesses p. any limit on the use of ballot meaningful justiciable Legislature’s advisory measures. sum, finds today’s application Legislature’s investigative power

no our and disturbs the settled that the support precedent understanding is It is hard to believe that the Legislature’s lawmaking power plenary. vested of this State” California—having legislative power ‘“[t]he Const., IV, 1), (Cal. art. a including adopt § Eu, (American resolution Federation Labor v. 36 Cal.3d at 708)—at the same time that the contemplated Legislature, by exercising incidental could restore to the of that power, people portion constitutionally vested legislative power.

III. The court’s reliance on the is to reach investigative power unnecessary above, Bill limited As Senate No. 1272 today’s holding. explained Sess.) (2013-2014 is a valid exercise of the Reg. Legislature’s implied power under article V of the federal Constitution. the Chief Justice would Although ballot measures ‘“with action that the uphold advisory regard any potential J., (conc. has to undertake” C. authority opn. Cantil-Sakauye, ante, 542), A the court declines to so far. decision of this court wisely go the door to ballot measures on would opening advisory virtually any subject transform the electoral are con potentially way politics policymaking ducted California.

I do not doubt that ballot measures can provide with valuable information about the electorate’s views on But public policy. such uses of measures do not exhaust the Lor prosaic possibilities. measures can be used to undercut the initiative example, advisory people’s a concern Citizens power, expressed by Charge, “advocacy group initiative, referendum, dedicated to and citizens’ and protecting expanding America,” in recall an amicus curiae letter the rights throughout supporting for writ of mandate this matter. It is a common original emergency petition tactic for of an initiative to a measure on the opponents qualify competing ballot, (Garrett, voter confusion. Direct thereby creating Democracy (Farber Research Handbook on Public Choice and Public Law & O’Connell edits., 2010) 155.) A to an initiative could legislative majority opposed swell the ballot with measures on the same Such an advisory subject. would be much easier than a initiative but no approach qualifying competing (See less effective the electorate. dis. confusing exhausting opn., post, and the for interference with potential, temptation, legislative [“the real”].) the of initiative is As California voters would people’s power many it is hard to cast an informed vote on the statewide agree, already enough ballot the each given multiple propositions competing propositions year. of also to vote on measures can worsen prospect having advisory only voter confusion and fatigue. addition, measures could be used to influence voter sentiment

about a initiative. not that one qualified Suppose, unrealistically, political controls and the and that the party majorities Legislature governorship, tax cuts. further that concerned citizens majority party opposes Suppose If an initiative broad-based tax cuts. had qualify proposing Legislature ballot, measures on the then general authority put advisory presumably could on the same ballot as the Legislature pose following questions initiative: tax-cutting cuts, A. To for future tax should the

Proposition pay any Legislature consider for cutting funding police departments? cuts, B. To for future tax should the

Proposition pay any Legislature consider for state cutting funding parks? cuts, C. To for future tax should the

Proposition pay any consider for education? cutting funding higher Moreover, ballot measures could be used to entrench a political Consider, for the 2010 race between majority. example, gubernatorial Jerry Whitman, executive, Brown and Whitman. business faced Meg wealthy controversies over her inside with an investment bank and alleged dealings the retention of a whose undocumented status she housekeeper allegedly knew. Democrats had controlled and the Suppose majorities If the 2010 season. had governorship during campaign general ballot, to measures on the then authority put advisory presumably could have on the 2010 ballot: Legislature posed following questions fairness, D. To should the consider a Proposition promote Legislature law that would business executives from incomes more prohibit earning than 100 times the incomes of their average employees? E. To should the

Proposition discourage corruption, Legislature consider a law that would more monitor business executives closely involved inside deals with investment banks? Americans, F. To restore should the

Proposition jobs hard-working consider a law that would those who heavily penalize undocumented as knowingly employ immigrants housekeepers? above, In these measures would be to cue examples advisory designed A, B, C) voters to defeat the initiative and or to tax-cutting (Propositions D, E, F). I defeat Whitman and am not sure whether these Meg (Propositions measures would bear a “reasonable connection” to the lawful Legislature’s ante, if to act under at But we are today’s opinion. (Maj. opn., (ibid.), if not to into motives” “inquire underlying Legislature may “obtain the views of the voters all manner of concerning subjects reasonably (conc. within a to act” of Cantil- legislative body’s authority opn. J., ante, 524), C. then on what basis could this court foreclose Sakauye, from such measures on the ballot? placing It is to dismiss the of such tactics as or easy possibility canny speculative if remote. But even measures local elections have not been used advisory such shrewd there is little assurance that the same would be true ways, elections, statewide where matters of broader scale and are impact typically stake, and where much sums of levels of greater money higher political Moreover, are to bear on tactics. be- sophistication brought electioneering cause measures an avenue for voters at the provide influencing right moment of are to be far more effective—and far voting, they likely certainly Internet, mail, less ads on television or the expensive—than running using e-mail, text or social media to reach voters. messages, hard-fought battle, the voters with on the ballot political ability prime messages itself attractive And there would be no presents enormously option. point abusive, if such tactics for would be and fair calling they perfectly legal game this court were to hold that the has general authority place measures on the ballot. As the 49 well proponents Proposition know, a critical role the rules of and it judiciary plays setting politics, is no when actors seek within surprise political every possible advantage those rules. in

It is true that the has not used such tactics modern times. But Legislature view, in that is evidence that the claimed does not exist and that my power course, I our has not needed it. Of cannot for sure political system say whether a decision such a would judicial recognizing actually change in of California the above. But the risk landscape politics way suggested is not one that our Constitution us to tolerate. requires Constitution,

The California like the United States Constitution and other constitutions, state establishes the fundamental structure of It is government. within this structure that the exercises its No issue is more Legislature power. basic to the structure of than what of matters be government types may on the ballot for a vote of the Our state Constitution placed citizenry. referenda, establishes the rules which voters initiatives and may propose and it to submit constitutional amendments and requires Legislature certain statutes to the voters for This constitutional structure approval. constrains the Just as the does not legislative majorities. have to submit statutes for voters to it does not general authority approve, have to use ballot measures to the electorate. general authority poll law, As a matter of state not alter its constitutional role Legislature may as the accountable at the people’s representative body by directing people, convenience, to exercise a voice Legislature’s merely hortatory, nonbinding If affairs. this court were to revise the balance our ordinary public Constitution has struck between direct and it would representative democracy, have serious for our potentially consequences political system.

The case before us is different. Here the is a role that playing not our state Constitution but article V of the federal originates V, Constitution. Under article has wide latitude to marshal the electorate’s views order to California’s will to express sovereign Congress and to other states on whether to amend the nation’s fundamental charter. The court confines measures properly today’s holding concerning here, federal constitutional amendments. Such a measure is all that is at issue I and concur its on a statewide ballot. judgment upholding placement CHIN, J., dissent. this court Dissenting.—I August correctly removed 49 from the ballot. It should now a similar Proposition prevent measure from on the ballot the future. being placed Placing advisory (American measures on the ballot—a denied even to the right Federation Labor v. Eu 36 Cal.3d 687 686 P.2d Cal.Rptr. Federation))—is (American no function and does part legislative 609] not come within either the Legislature’s lawmaking ancillary powers. Background

I. Factual and Procedural 2014, In a resolution to call a Legislature adopted urging Congress constitutional convention to an amendment to the United States propose Constitution that would overrule the decision United v. Federal Citizens 753, Election Comm’n 558 U.S. 310 L.Ed.2d 130 S.Ct. 876] 1, United). Sess.) (Citizens (Assem. (2013-2014 J.Res. No. Stats. 2014 Reg. 77.) (2013-2014 Bill res. ch. The also enacted Senate No. 1272 Sess.) 1272). (Senate (Stats. Bill ch. That bill directed Reg. of State to submit an to the voters” at the Secretary “advisory question November 2014 election whether should and the asking Congress propose, an amendment to the United States Constitution that would Legislature ratify, 175, 4.) (Stats. overturn United. ch. § Citizens Bill The Governor Senate 1272 to become law without his permitted He issued a statement he did so: bill and signature. explaining why “[T]his vote it has no effect whatsoever. The requires legal only way overturn a Court decision such as United is Supreme process Citizens fact, In outlined Article V of the United States Constitution. the California State took action this Legislature recently regard by approving joint resolution to convene a Constitutional convention for calling upon Congress Brown, Jr., (Gov. this Edmund G. letter to members of Cal. very purpose.” Sen., 15, 2014.) State The Governor said he understood the motivation July he, too, behind the bill because believes United was wrongly Citizens “But,” wrote, decided. he “we should not make it a habit to clutter our ballots with measures as citizens assume that their votes are nonbinding rightfully Nevertheless, meant to have effect. commitment legal given Legislature’s issue, on this even to the for an Article V point calling unprecedented Convention, I Constitutional am to allow this to be willing question placed my before the voters. SB 1272 to become law without By allowing [¶] signature, I it is intention to am not inclined to this my signal repeat {Ibid.) from the voters.” practice seeking advisory opinions of State the matter 49 and Secretary designated Proposition began it on the ballot. Petitioners Howard Jarvis preparing place Taxpayers Jarvis) (Howard Association et alia filed a for writ of promptly petition mandate 49 from on the ballot. seeking prevent Proposition being placed relief, After a divided Court of denied Howard Jarvis filed the instant Appeal this court. we issued an order to show cause and petition August directed the of State to refrain from further action to Secretary taking any 49 on the November 2014 ballot. place Proposition Our 2014 order to show cause American Federation’ a August quoted it is to remove a dubious measure from the explanation why necessary “ attention, ballot: ‘The of an invalid measure on the ballot steals presence time and from the numerous valid on the same ballot. It money propositions others, will confuse some voters and frustrate and an ultimate decision that invalid, the measure is after the voters have voted favor of the coming measure, tends to the use of the initiative denigrate legitimate procedure.’ Federation[, 697.)” (American (1984) 36 Cal.3d We supra,] explained uncertain, ‘“[bjecause that we issued the the is stay proposition’s validity because this court American Federation made clear that substantial harm ballot, if can occur an invalid measure is to remain on the permitted measure, effect, because the which the would have no can parties agree legal if be on a future ballot at the direction the court placed Legislature’s determines it is valid . . . .” Justice Liu issued a ultimately separate statement, while the Chief Justice dissented from the issuance of concurring the stay.

After full the merits of Howard Jarvis’s to briefing, challenge Proposition I 49 are now before us. with the resolution of Although disagree majority’s merits, I the that we should decide them even the is agree though question moot. The needs to know whether it can a similar technically pass measure the same on a future ballot. placing advisory question (Maj. opn., ante, 497.) at p.

II. Discussion Federation, In American 36 Cal.3d was whether supra, question initiative, could on the ballot an people, invoking right place measure to convene a advisory urging apply Congress constitutional convention to that the United States Constitution be propose 690-691.) (Id. amended to a balanced federal We held require budget. that the could not do that because the measure exceeded the people (Id. of the initiative now before us is scope power. question whether the can measure on the ballot when the place cannot do so themselves. Just as the merits of a balanced budget Federation, so, too, amendment were irrelevant to the American holding United, the merits of 558 U.S. are irrelevant overturning Citizens to the issue here. outset, I I

At the stress that that the agree fully Legislature’s lawmaking Constitution, is “Unlike the federal which is a plenary. grant the California Constitution is a limitation or restriction on the Congress, of the Two flow powers Legislature. important consequences [Citations.] First, state, from this fact. the entire law-making authority except referendum, of initiative and is vested people’s right Legislature, exercise and all which are not body may any legislative powers expressly 582 In

or denied to it the Constitution. by necessary implication by [Citations.] words, other ‘we do not look to the Constitution to determine whether the act, if is authorized to do an but to see it is legislature only prohibited.’ all intendments favor the exercise of the Secondly, Legisla- [Citation.] [¶] ‘If ture’s there is doubt as to the to plenary authority: any Legislature’s power case, act the doubt should be resolved favor of the any given action. Such restrictions and limitations the Consti- Legislature’s [imposed by are to be construed and are not to be extended to include strictly, tution] ” (Methodist matters not covered used.’ by language Hosp. of 685, 1, (1971) Sacramento v. 5 Cal.3d 691 488 P.2d Saylor Cal.Rptr. [97 County added; accord, 161], (2003) italics Riverside v. Court 30 Superior 713, 718].) Cal.4th 284 66 P.3d Cal.Rptr.2d [132 But this does not here. plenary lawmaking authority apply Proposition does not make law. As the Governor and as it is explained, everyone agrees, if an measure that would have no effect even merely advisory legal passed. sense, Bill one Senate 1272 is a law because it directs the measure to be on the ballot. But the action it directs is The placed legally meaningless. If it cannot be based on its Legislature’s power pass lawmaking authority. ballot, has the measure on the it power place must be on else. grounded something also “has the that is incidental engage activity (The

or to its functions.” Zumbrun Law Firm v. ancillary lawmaking (2008) 165 Cal.App.4th Cal.Rptr.3d [82 California 525], 873].) Parker v. 18 Cal.2d P.2d As we citing Riley established, when becomes explained long ago, legislative assembly, “[a] vested with all the and which are and incidental powers privileges necessary to a free and unobstructed exercise of its functions. These appropriate powers Constitution; and are derived not from the on the privileges contrary, they arise from the creation of a and are founded very legislative body, upon of self The Constitution is not a but a restriction principle preservation. grant, of the and hence an enumeration of upon Legislature, express and the Constitution cannot be considered as legislative powers privileges A the exclusion of others not named unless terms. accompanied by negative has, therefore, all the and which are legislative assembly powers privileges free, to enable it to exercise all and necessary respects, intelligent manner, functions, its so far as it be impartial appropriate except may Constitution, restrained some express provisions express itself, (Ex law made unto the same.” D. O. regulating limiting parte (1866) 29 Cal. several of these McCarthy [listing powers But these are not unlimited. privileges].) ancillary powers Often a limitation on the is rather than Legislature’s power implied in the Constitution. For not allow expressed example, Legislature may district to refile that have reached final attorneys accusatory pleadings 29, 214, (2002) v. 27 Cal.4th 34-37 judgments. (People King Cal.Rptr.2d [115 398].) 37 P.3d the not a criminal court to Similarly, Legislature may require obtain a consent before a for a prosecutor’s ordering juvenile disposition in minor with a serious crime lieu of a sentence under the Penal charged Code. v. Thomas 35 Cal.4th 639-642 (People Cal.Rptr.3d 564].) 109 P.3d These derive from the of of prohibitions principle separation Here, the is not the execu powers. separation powers among legislahve, tive, and branches of but between the and the judicial government of the ballot to the people. power belongs people. “All

The California Constitution itself so indicates. is political power Const., II, 1.) (Cal. inherent art. “The people.” legislahve power § , this State is vested the California . . . but the reserve to Const., IV, (Cal. themselves the of initiative and referendum.” art. powers 1.) “The initiative is the of the electors to statutes and propose § Const., (Cal. amendments to the Constitution and to them.” art. adopt reject II, 8, (a).) subd. §

The Constitution three circumstances which the provides if must matters on the ballot the achon the is to place Legislature proposes First, take effect. amend or an initiative statute Legislature “may repeal another statute that becomes effective when the electors only approved by unless the initiative statute amendment or without their permits repeal Const., II, Second, (Cal. (c).) art. subd. “Each measure approval.” § for the issuance and sale of bonds of the State of providing preparation, California shall hereafter be submitted to the electors the form of a bond Const., XVI, Third, (Cal. (a), act or statute.” art. subd. 2d par.) § (Cal. an amendment or revision of the Constitution” Legislature “may propose Const., XVIII, 1), art. but the amendment or revision shall be “proposed § if submitted to the electors and of votes thereon takes approved by majority (Cal. effect the after the elechon unless the measure otherwise” day provides Const., XVIII, 4). art. a different seems to Additionally, provision imply § chooses, if that the it a “statute” on the ballot for the Legislature may, place Const., II, (Cal. electorate to art. ratify. §

Because the California Constitution is a restriction on the Legislature’s not a these circumstances which the powers, grant powers, designating not, itself, matters on the ballot does Legislature may place necessarily mean the not do so other circumstances. But those Legislature may circumstances are to confirm an action designed protect people’s right not to access to the Legislature proposes, give Legislature general ballot. The overall constitutional scheme shows that the of the ballot is reserved to the not the people, Legislature. Federation, noted,

This us to American 36 Cal.3d 687. As the brings supra, issue there was whether the could on the ballot an people place measure a constitutional amendment to a balanced federal urging require (Id. 690-691.) We that the measure exceeds the budget. “conclude[d] of the initiative under the of the California scope power controlling provisions II, IV, 1). (art. Constitution 8 and art. The initiative is the to power power § § ‘statutes’—to enact laws—but the crucial of the balanced adopt provisions initiative do not a statute or enact a law. and budget adopt They adopt, mandate the a resolution which does not Legislature adopt, change California law and constitutes one a which only step process might amend the federal Constitution. Such a resolution is not an eventually exercise of reserved to the under the California legislative power people (Id. omitted.) Constitution.” fn. We that the initiative ‘“is explained if not a It is a method of public opinion poll. enacting legislation, if measure does not enact or it seeks to proposed legislation, compel action which the electorate has no it should not legislative power compel, (Id. 695.) be on the ballot.” at p.

We further that ‘“the reserved of initiative and referen explained powers dum do not all actions of a Those encompass possible legislative body. limited, Constitution], II are under article the California to the powers [of or of ‘statutes.’. . . does not include a resolution which adoption rejection [I]t the wishes of the whether that is merely expresses enacting body, expression or serves as one which lead to a purely precatory step process may Federation, (American federal constitutional amendment.” 36 Cal.3d at supra, 708.) We summarized that the initiative ‘“functions ... as a reserved a method of law. The initiative legislative power, enacting statutory present (Id. does not conform to that model.” at p. whole, if the constitutional as a it is clear that this

Viewing provisions Federation, court had reached a different conclusion American held, Cal.3d as the dissent had that the measure was urged, a valid exercise of the initiative would not have the power, a measure like 49 on the ballot. That would power place Proposition power have been reserved to the people. it,

But it is incorrect to conclude that because the cannot do people said, can. As we have ‘“the of the people through initiative is coextensive with the statutory Legislature.” v. 34 Cal.3d (Legislature Deukmejian Cal.Rptr. ballot, 17].) If P.2d cannot a matter on the neither can the people place ballot, The can be heard either Legislature. directly only through their the initiative or referendum by electing representatives process. circumstances which the has recourse to the specified ballot exist to the to what the solely implement people’s right accept reject is But the does not otherwise need the Legislature proposing. Legislature ballot. It can act itself. Other than the circum- constitutionally prescribed stances, the should not be to the ballot to serve Legislature permitted hijack its own agenda. the measures on the ballot would

Permitting place advisory allow it to interfere with the reserved initiative The greatly people’s rights. could an measure on the ballot that would easily place advisory with an initiative measure. As one commentator “voter compete explains, confusion often results from the on the ballot of ballot appearance competing initiatives on the same a tactic often used of the first subject, by opponents initiative. Because actors know that voters react to savvy political frequently measures, confusion ‘no’ on both of a by voting opponents particular initiative work to measure the that it will may qualify competing hope result either both defeated or the more favorable being competing (Garrett, measure enacted instead of the initial Direct being proposal.” (Farber in Research Handbook on Public Choice and Public Law Democracy edits., 2010) & O’Connell ‘ ’ “Voter initiatives have been to a ram” compared “legislative battering ‘

because be used to tear the of the they “may through exasperating tangle ’ traditional and strike toward the desired end.” legislative procedure directly Valley (Amador Joint Union Sch. Dist. v. State Bd. High Equalization 239, 1281].)” (1978) (Tuolumne 22 Cal.3d 583 P.2d Cal.Rptr. [149 Jobs & Small Business Alliance v. Court 59 Cal.4th Superior 912].) 330 P.3d The sometimes Cal.Rptr.3d Legislature might be hostile to the use of this ram and do what it can to people’s battering defeat an initiative measure. measures on the ballot Placing competing might case, be one to do that. No motives this but the way improper appear and the for interference with the potential, temptation, legislative people’s “In of initiative is real. of the initiative light power’s significance ‘ our courts have a “to this democracy, duty jealously guard right (Ibid.) ’....” interference with people” way guard against legislative use, the of initiative is to leave the ballot for the not people’s right people’s the Legislature’s. Constitution, I, (a), California article section subdivision which

Citing ... to instruct their gives “people right representatives,” an measure on the ballot is a Legislature suggests placing way for the this instruction. But the themselves cannot people provide people Federation, (American measure on the ballot. place 687.) A Cal.3d constitutional cannot right given people empower to do are from something prohibited doing. The also its to it the Legislature argues ancillary power investigate gives to measure on the ballot. It does have the authority place advisory power to to its function. The California Constitution investigate support lawmaking this “The or either house expressly provides power. Legislature may by resolution for the selection of committees for the conduct provide necessary business, of its committees to ascertain facts and make recom including mendations to the on a within the Legislature subject scope legislative Const., IV, 11.) (Cal. control.” art. We described the included power § Ex D. O. as the the parte McCarthy investigate, by testimony “[t]o otherwise, matter, in witnesses or or reference to which it has any subject act; and, counsel, in to to witnesses and consequently, protect parties, attendance, summoned, their when occasion to attend for that having McCarthy, omitted; (Ex D. O. 29 Cal. at italics purpose.” parte [similar].) see In re Battelle 207 Cal. P. 725] can, does, But the do all of this. as Legislature already Additionally, Justice Liu observed his statement when this court issued the concurring case, 2014 order to show cause this the wants August Legislature “[i]f United,” to commission to do a on it do so. Modern Gallup poll may Citizens Internet, the with all of the interaction and technology, including exchange facilitates, information and views it to gives Legislature ample ability ascertain the electorate’s wishes. It does not need recourse to the ballot to its function. The for interference with the perform proper potential people’s reserved of initiative value an right greatly outweighs any marginal advisory measure have to aid the into the electorate’s might Legislature’s investigation wishes.

The asserts that an measure like this one majority confidently advisory would never or interfere with an initiative measure the compete people placed ante, I on the ballot. fn. not. cannot (Maj. opn., Maybe, maybe what the to do the future. it will predict Legislature might try Perhaps event, never test the of this assertion. this is a one-time as accuracy Perhaps however, the Governor It would be urged. appears, majority willing a future measure that does threaten to prevent impede people’s of initiative. But of an measure on a right considering validity basis would the courts affairs far more case-by-case entangle legislative than does not simply concluding possess nonlawmaking it does not need to function With the constitu- authority fully effectively. tional does not need access to the ballot. But the exceptions, ballot is the people’s only way legislate directly. also cites occasions which it past placed advisory

measures on the ballot—all but one more than a the most recent century ago, in the 1930’s—as it has this But the showing power. Legislature’s power do so was never “The obvious answer to this contention is that challenged. custom, continued, no matter how cannot create a the usage long right Assembly that otherwise it does not . . . .” Int. legislature possess (Special 497, 304].) (1939) Com. v. Southard 13 Cal.2d 508-509 P.2d [90 is also far from Two of the measures were past precedent impressive. driven anti-Chinese sentiment that was at the time. immigration prevalent 1, 288].) (See In re 60 Cal.4th 1169 344 P.3d Chang Cal.Rptr.3d “ 1877, In the asked the voters to indicate whether were ‘For they ” “ ” 1877, (Stats. Chinese Chinese Immigration’ ‘Against Immigration.’ 5, 1, 1891, 3.) ch. the asked the voters whether were p. they § “ for or ‘an educational voter to be able against qualification requiring every to write his name and read section of the Constitution the any English ” 1891, 113, 1, 115.) (Stats. ch. This is language.’ p. hardly sterling § sentiment, Given the it is precedent. anti-Chinese-imntigration unsurprising no one the the measures on the challenged Legislature’s authority place ballot. 1891, 1909,

Measures and 1911 concerned the ultimate of the passage Constitution, Seventeenth Amendment to the United States which the gave 1911, 387, (Stats. the to elect United States senators ch. right directly. 704-705; 405, 2, 691; 1891, 48, 1, Stats. ch. Stats. ch. pp. p. § § § Indeed, 46-47.) the 1909 and 1911 measures merely anticipated Seventeenth Amendment’s ratification the voters to state who by allowing should serve as United States senators. Because the measures supported electorate’s direct it is no one them on voting right, unsurprising challenged this basis. election, one month before the 1933 advi-

Finally, Legislature placed measures on the ballot two whether it should sory asking questions regarding (Stats. divert from the tax funds for money gasoline specified purposes. 435, 3, 1126.) ch. The measures were defeated at the p. polls. (Propositions § Electors, 27, 1933) (June Submitted to Vote of Election Measured Special Defeated, 9, 10, xc.) Nos. Stats. Because the measures were placed defeated, on the ballot a month before the election and were then it is only also that no one them. unsurprising challenged

Thus, the most recent of these measures occurred over eight decades before the of modern ago, long development polling techniques, Internet, and other methods of wishes ascertaining people’s political notes, “If matters. As Justice Liu of historical aptly anything, paucity with none the last 80 tends to cast doubt on the existence examples, years, Liu, J., ante, (Conc. claimed here.” validity opn. The also that the to 49 on the Legislature argues power place Proposition relevant, ballot derives from article V of the United States Constitution. As that article that “on the of two-thirds provides application legislatures states,” of the several “shall call a convention for Congress proposing amendments” to the Constitution. This the provision certainly gives Legisla- I ture the to to to call a convention for that power apply Congress purpose. have no doubt that to an measure like allowing Legislature place (See 49 on the ballot would not violate article V. v. Proposition Bramberg 1240].) Jones 20 Cal.4th 978 P.2d Cal.Rptr.2d Indeed, notes, as the states have their Legislature many permitted legislatures to do so. But article V a state to measures nothing compels permit advisory like 49 when so would on a constitutional Proposition doing infringe right reserved to the people. has,

Given all the other to powers Legislature including right it does not need the additional measures investigate, power place advisory Constitution, on the ballot order to exercise its United States article V of this does not affect authority. Depriving materially Indeed, its to exercise this has ability authority. already 49 was to applied Congress regarding precise subject Proposition No.l, Sess.) (Assem. (2013-2014 address. J.Res. Stats. 2014 res. ch. Reg. reasons, I For these would hold the has no place measure like 49 on the ballot. Proposition of real interest for a was denied petition party rehearing February Chin, J., 2016. was of the that the should be opinion petition granted. notes 49 resulted from Although passing Proposition statute, a it does not rest its for on the argument constitutionality syllogism statutes, Bill that the includes the to enact Senate legislative power power statute, No. 1272 takes the form of an enacted and thus for that reason alone the bill and 49 are within a constitutional source of Proposition power. Instead, it has the inherent to conduct an Legislature argues power in order to select the wisest course. Pursuant to that investigation policy contends, it enact a statute implied investigative power, may before the voters.6 placing advisory question We have since the of statehood the act of early days recognized a imbues that with certain charac creating legislature body implied authority established, “A teristic of when becomes parliaments: legislative assembly, vested with all the and which are and incidental powers privileges necessary to a free and unobstructed exercise of its functions. These appropriate powers Constitution; are derived not from the on the privileges contrary, they arise from the creation of a and are founded very legislative body, upon (Ex of self D. O. 29 Cal. principle preservation.” parte McCarthy 403.) The and nature of these is “to be ascertained scope powers (Ibid.) reference to the common law.” or most of a parliamentary Many common law relate to matters of such as parliament’s powers self-regulation, (see internal rules of id. determining membership establishing procedure One, however, 403-04), and are not relevant here. is: the inherent otherwise, of witnesses or investigate, by testimony any “[t]o matter, (Id. reference to which has to act.” subject legislature] [a omitted.) italics investigative power permits advisory questions Because we conclude the in connection amendments, potential express opinion potential with federal constitutional we no about other authority advisory questions. sources of for

Case Details

Case Name: Howard Jarvis Taxpayers Assn. v. Padilla

Court Name: California Supreme Court

Date Published: Jan 4, 2016

Citation: 196 Cal. Rptr. 3d 732

Docket Number: S220289

Court Abbreviation: Cal.