ROSS JOHNSON et al., Petitioners, v. TOM BRADLEY as Mayor, etc., et al., Respondents.
No. S021118
Supreme Court of California
Dec. 24, 1992.
389
Ross Johnson and Quentin L. Kopp, in pro. per., Kopp & Di Franco and L. Michael Bogert for Petitioners.
Scott Hallabrin and Jonathan S. Rothman as Amici Curiae on behalf of Petitioners.
James K. Hahn, City Attorney, Anthony Saul Alperin, Assistant City Attorney, and Raymond S. Ilgunas, Deputy City Attorney, for Respondents.
Louise H. Renne, City Attorney (San Francisco), Burk E. Delventhal and Thomas J. Owen, Deputy City Attorneys, L. B. Elam, County Counsel (Sacramento), John F. Whisenhunt, Deputy County Counsel, Sharon Siedorf Cardenas, City Attorney (Sacramento), Richard E. Archibald, Deputy City Attorney, John W. Witt, City Attorney (San Diego), John M. Kaheny, Assistant City Attorney, Christie C. Maguire, Deputy City Attorney, Geoffrey Cowan, Munger, Tolles & Olson, Bradley S. Phillips and Mark H. Epstein as Amici Curiae on behalf of Respondents.
LUCAS, C. J.—In this original mandamus proceeding petitioners seek to invalidate and enjoin enforcement of a campaign reform measure adopted by the voters of the City of Los Angeles to the extent the measure provides for the partial public funding of campaigns for city elective offices. Petitioners ground their challenge on Proposition 73, a statewide initiative that, inter alia, bans public financing of any election campaign. We conclude Proposition 73‘s prohibition on public financing does not preclude the City of Los Angeles from adopting and enforcing the public funding provisions of its campaign reform measure.
I. Facts and Procedure
In June 1988, State Assemblyman Ross Johnson and State Senator Quentin Kopp (two of the three petitioners in this action)1 successfully sponsored a statewide initiative, Proposition 73, which added chapter 5 to the Political Reform Act of 1974 (
Two years later, the voters of the City of Los Angeles amended the city charter by adopting Measure H, a comprehensive campaign, election and ethics reform plan. Measure H provided for: (i) the creation of a city ethics commission to oversee, administer, and enforce the new ethics code; (ii) limitations on campaign contributions;3 (iii) limitations on the total amount of contributions that a candidate may accept in any election; (iv) prohibitions on the transfer of contributions between candidates or their controlled committees; (v) disclosure of candidates’ economic interests and income; and (vi) limitations on gifts and honoraria that public officials may accept.
Finally, unlike Proposition 73, which imposed limits on contributions but not on spending by candidates, Measure H also imposed spending limitations. The drafters of Measure H apparently realized that under Buckley v.
Subdivision A of charter section 313 sets out “Findings and Purposes.” It states:
“1. Monetary contributions to political campaigns are a legitimate form of participation in the American political process, but the financial strength of certain individuals or organizations should not permit them to exercise a disproportionate or controlling influence on the election of candidates. [¶] 2. Therefore, this section is enacted to accomplish the following purposes: [¶] (a) To assist serious candidates in raising enough money to communicate their views and positions adequately to the public without excessive expenditures or contributions, thereby promoting public discussion of the important issues involved in political campaigns. [¶] (b) To limit overall expenditures in campaigns, thereby reducing the pressure on candidates to raise large campaign funds for defensive purposes, beyond the amount necessary to communicate reasonably with the voters. [¶] (c) To provide a source of campaign financing in the form of limited public matching funds. [¶] (d) To substantially restrict fund-raising in non-election years. [¶] (e) To increase the value to candidates of smaller contributions. [¶] (f) To reduce the excessive fund-raising advantage of incumbents and thus encourage competition for elective office. [¶] (g) To help restore public trust in governmental and electoral institutiоns.”
Subdivision B of charter section 313 provides for establishment of spending limitations and disbursement of matching funds. It states in relevant part, “The City shall . . . adopt by ordinance limitations on campaign expenditures by candidates for elective City office who qualify for and accept public matching funds. The City shall adopt by ordinance regulations concerning the use of public funds to partially finance campaigns for elective City office through a system of matching public funds for qualifying campaign contributions. . . .” Subdivision C(4) of charter section 313 provides, “[t]he funds used to make payments for matching funds shall come exclusively from City sources of revenues.”
Petitioners invoked the original jurisdiction (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 731 [248 Cal.Rptr. 115, 755 P.2d 299]) of the Court
Petitioners claimed
The Court of Appeal rejected respondents’ procedural claims, finding that at least one petitioner (Bernardi) had standing and that relief was properly sought against respondents. It then rejected the argument of amici curiae on behalf of respondents that
II. The Constitutional Authority of Charter Cities Over “Municipal Affairs”
A. The Evolution of “Home Rule” in California
Under the
Thereafter we held in a number of cases that the 1879 Constitution did in fact continue to subordinate charter city legislation to general state laws (Davies v. City of Los Angeles (1890) 86 Cal. 37, 41 [24 P. 771], and cases cited therein), and that if the power of “the legislature to interfere by general laws with the local affairs of a city . . . is an evil affecting the rights of city governments, the remedy is by amendment of the constitution.” (Id., at p. 42.)
In apparent response to Davies, supra, and related litigation, in 1896
The lead opinion in Fragley v. Phelan (1899) 126 Cal. 383 [58 P. 923], discussed “the reasons which moved the legislature to propose the amendment [to
Justice Harrison‘s concurring opinion in Fragley v. Phelan, supra, 126 Cal. 383, 391, suggested a significant caveat: He asserted that unless a charter expressly provided for municipal control over a particular concern, general state law would prevail. (Id., at pp. 395-396 (conc. opn. of Harrison, J.).) In effect, this meant that city charters were “not paramount to general state laws, even as to purely municipal affairs, in cases where the charter was silent.” (Comment, Municipal Corporations: Home Rule Charters: Application of the Workmen‘s Compensation Act (1926) 15 Cal.L.Rev. 60, 60-61.) In сonformity with this view, we held, in Nicholl v. Koster (1910) 157 Cal. 416 [108 P. 302], that although
An article published in 1913 criticized this state of “municipal affairs” law, and proposed a constitutional amendment to
The next year,
After the amendments of 1914, the “municipal affairs” aspects of these provisions remained essentially unaltered for over half a century. In 1968, as part of the general overhaul of the state Constitution, the California Constitution Revision Commission recommended to the Legislature that the above sections be retained in substance but rewritten and renumbered as new
B. Article XI, Section 5
III. Recent Application of Article XI, Section 5
In California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1 [283 Cal.Rptr. 569, 812 P.2d 916] (CalFed), we construed
We first surveyed the general state law that exempts savings banks from municipal taxation, and which supported the Legislature‘s stated goal of achieving uniform regulation of all such entities by barring local taxation of all financial institutions. (CalFed, supra, 54 Cal.3d at pp. 7-10.) We then analyzed various cases decided under
We continued: “In broad outline, a court asked to resolve a putative conflict between a state statute and a charter city measure initially must
We then articulated a framework for resolving municipal-affairs and statewide-concern questions under
We further explained, “The phrase ‘statewide concern’ is thus nothing more than a conceptual formula employed in aid of the judicial mediation of jurisdictional disputes between charter cities and the Legislature, one that facially discloses a focus on extramunicipal concerns11 as the starting point for analysis. By requiring, as a condition of state legislative supremacy, a dimension demonstrably transcending identifiable municipal interests, the phrase resists the invasion of areas which are of intramural concern only,
We summarized the dispositive issue as follows: “In cases presenting a true conflict between a charter city measure . . . and a state statute, . . . the hinge of the decision is the identification of a convincing basis for legislative action originating in extramunicipal concerns . . . .” (CalFed, supra, 54 Cal.3d at p. 18.) Turning to the question before us in CalFed, we stated, “We must decide whether . . . the showing before the superior court supports the Legislature‘s finding of a need for paramount state control over the aggregate income tax burden on financial corporations such as petitioner.” (Id.) After reviewing the legislative history of the statutory scheme, we concluded, “the Legislature‘s decision to modify the tax system by eliminating local taxes on savings banks finds substantial support in the regulatory and historical context summarized above, . . . and is narrowly tailored to resolve the problem at hand. [Citation.] [¶] Support for the conclusion that the local taxation of savings banks is at present12 a subject of statewide concern is strengthened by the limited extent of the incursion made by [the state statute] . . . . [W]e are mindful of [the] caveat that ‘the sweep of the state‘s protective measures may be no broader than its interest. [Citation.] Here, the limited interference with municipal taxation wrought by [the state statute] is substantially coextensive with the state‘s underlying regulatory interest.” (Id., at pp. 24-25, italics added.)
IV. Analysis
A. “Actual Conflict” Between State and Charter City Law
As we explained in CalFed, supra, 54 Cal.3d 1, the first step in a reviewing court‘s inquiry is to determine whether there is an “actual conflict” between general state law and charter city authority. Accordingly, we would normally address initially the claim raised by amici curiae for respondents that
B. Application of Article XI, Section 5 to the Facts of This Case
Respondents and amici curiae on their behalf focus initially on
1. Analysis of Charter Section 313 Under the City‘s “Plenary Authority” to Regulate “the Manner” by Which Municipal Officers Are Elected—Subdivision (b)(4) of Article XI, Section 5
In Mackey v. Thiel (1968) 262 Cal.App.2d 362 [68 Cal.Rptr. 717] (Mackey), the court addressed article XI, former section 8½, which, like its successor,
The petitioner submitted his statement to the county clerk, but the clerk refused to comply with the statute, on the ground the statute does not apply to charter cities, and the city‘s election code made no provision for mailing
The court noted that the city‘s election code established “a comprehensive set of rules governing all phases of city elections” and that it “provides for certain information of a substantive nature respecting issues to be included with the mailing of sample ballots but not candidate qualification booklets as provided in [Elections Code, former] section 10012.5.” (Mackey, supra, 262 Cal.App.2d at p. 364, italics in original.) It also noted that article XI, former section 8½ of the Constitution granted “plenary authority” to the city over the “manner” by which municipal officers are elected, and characterized the petitioner‘s argument as follows: “Such ‘plenary authority’ having been given to the City, . . . it is contended that [City‘s] code . . . should prevail over the provisions of [Election Code, former] section 10012.5 . . . .” (Mackey, supra, 262 Cal.App.2d at p. 364.)
The court proceeded to impliеdly accept the petitioner‘s argument. In doing so, it acknowledged the respondent‘s assertion that
Petitioners assert Mackey and the cases on which it relies (e.g., Uhl, supra, 155 Cal. 776; City of Redwood City v. Moore (1965) 231 Cal.App.2d 563 [42 Cal.Rptr. 72] [disapproved on other grounds in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63, fn. 6 [81 Cal.Rptr. 465, 460 P.2d 137]]) are distinguishable because they involved local election “procedures,” and not the integrity of the political or electoral process itself. The latter matter,
In essence, petitioners ask us to interpret narrowly the word “manner,” as used in the constitutional provision, to exclude all local election regulations except those that may be labeled “procedural.” But as the court in Mackey, supra, 262 Cal.App.2d 362, acknowledged, and as the respondent in that case argued, the conflict in Mackey could not fairly be described as procedural: the question was a substantive one, i.e., whether information about candidates’ qualifications should be mailed to voters. It thus appears that the election provisions at issue in Mackey implicated concerns similar to what petitioners describe as the integrity of the political or electoral process, which is concededly an issue of statewide concern. Yet the Mackey court upheld a charter city‘s right to adopt a different course and decline to follow the state statute. This holding suggests that the constitutional provision granting charter cities “plenary authority” over the “manner” of electing municipal officers has a broader scope than envisioned by petitioners. We conclude petitioners offer no persuasive justification to question the reasoning or result in Mackey, and we are reluctant to endorse the narrow scope of the word “manner” advocated by petitioners.
We are hesitant, however, to embrace the expansive view of
2. Analysis of Charter Section 313 Under the City‘s General “Home Rule” Authority of Article XI, Section 5, Subdivision (a)
Under CalFed, supra, 54 Cal.3d 1, once we conclude, as above, that “the matter implicates a ‘municipal affair’ and poses a genuine conflict with state law” (id., at p. 17), our inquiry under
a. Does Section 85300 Qualify as a Matter of Statewide Concern?
Petitioners assert four grounds (and various subpoints) on which to base their claim that
In the Court of Appeal, and to a lesser extent in this court, petitioners assert that because the drafters of Proposition 73 and those who voted for the measure intended to create a statewide rule barring public funding of all election campaigns,
This point need not detain us long. The assertion that a legislative body may define what is, and is not, a matter of statewide concern was rejected in Bishop v. City of San Jose itself: “[T]he fact, standing alone, that the Legislature has attempted to deal with a particular subject on a statewide basis is not determinative of the issue as between state and municipal affairs . . . ; stated otherwise, the Legislature is empowered neither to determine what constitutes a municipal affair nor to change such an affair into a matter of statewide concern.” (1 Cal.3d at p. 63; see also id., at p. 63, fn. 6 [disapproving contrary cases]; Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 317 [152 Cal.Rptr. 903, 591 P.2d 1].) As we explained in CalFed, supra, 54 Cal.3d 1, our inquiry regarding statewide concern focuses not on the legislative body‘s intent, but on “the identification of a convincing basis for legislative action originating in extramunicipal concerns, one justifying legislative supersession based on sensible, pragmatic considerations.” (Id., at p. 18.) In other words, we must be satisfied that there are good reasons, grounded on statewide interests, to label a given matter a “statewide concern.”
Petitioners next cite County of Sacramento v. Fair Political Practices Com. (1990) 222 Cal.App.3d 687 [271 Cal.Rptr. 802] (County of Sacramento) for the proposition that campaign financing, and public financing of political campaigns in particular, is a matter of statewide concern. In County of Sacramento, supra, the court addressed a conflict between
County of Sacramento, supra, is plainly distinguishable. There, the court construed constitutional provisions (relating to charter counties) that, in
In essence, the County of Sacramento decision appears to rest almost exclusively on the ground that the drafters and voters “intended to establish a single body of law pertaining to the financing of election campaigns.” (222 Cal.App.3d at p. 692, italics added.) As we explained above, however, the voters’ intent that a matter be treated on a statewide basis does not make that matter a statewide concern. Furthermore, the bare interest of “uniformity in the manner of electing officials” is no justification for treating public funding of municipal elections as a statewide concern, because, standing alone, it reveals no “convincing basis for legislative action originating in extramunicipal concerns.” (CalFed, supra, 54 Cal.3d at p. 18.) Accordingly, we decline to accept County of Sacramento‘s holding that campaign financing, and in particular, partial public funding of local election campaigns, is a statewide concern, because neither the County of Sacramento court, nor petitioners or their amicus curiae herein, have established any convincing reason, grounded on statewide interests, supporting Proposition 73‘s attempt to treat public funding of election campaigns as a “statewide concern.”
We do not doubt that conservation of the state‘s limited funds is a statewide concern. But petitioners, understandably, do not attempt to justify the public funding ban on the ground that it is designed to protect state revenues, because a local public funding law that draws its revenues exclusively from local taxes would obviously not implicate a concern for protecting the state fisc. Instead, petitioners suggest there is a legitimate statewide concern in how local tax proceeds are expended.
On this point, we agree with the Court of Appeal below, which observed, “[W]e can think of nothing that is of greater municipal concern than how a city‘s tax dollars will be spent; nor anything which could be of less interest to taxpayers of other jurisdictions. [Charter section 313, subdivision (C)4] expressly limit[s] the monies to be utilized for campaign financing to city funds. Thus, payments received by the city from state or federal governmental agencies may not be used. These are the city taxpayers’ own dollars and those taxpayers, together with their city council, have voted to utilize those dollars to help finance political campaigns for city elective offices as a central if not critical part of major political campaign and ethics reform. That Proposition 73 expressly dealt with this subject and intended that its prohibition extend to campaigns and candidates for local office does not convert the decision of the City of Los Angeles, to follow a different path with its own money, into a matter of statewide concern.”
Petitioners also advance two variations on the fiscal concern described above in their attempt to establish a statewide concern. They focus on ballot arguments by the proponents of Proposition 73 to the effect that public funding might: (i) divert scarce tax funds from local needs such as “police protection, fire protection, or schools“; and (ii) be made available to “extremist candidates” such as “communists or members of the Ku Klux Klan” with whom many voters disagree.
We reject the first claim because it is merely a variation on the argument presented and rejected above, i.e., that the manner in which local tax proceeds are expended is a legitimate statewide concern. Moreover, it proves
The second claim was not raised in petitioners’ briefs in the Court of Appeal, and in their briefs before this court they devote merely two undeveloped paragraphs to it. Their treatment of this issue consists of the following: In their opening brief they state, “The federal experience in matching Presidential campaign funds amply supports the fears expressed in the ballot arguments that extremist candidates could receive state and local taxpayers’ dollars to press their political agenda. On September 27, 1989, the Federal Election Commission reported that Lyndon H. LaRouche received $825,576.99 for the 1988 election cycle.”
In their reply brief petitioners complain that “Respondents offer no rebuttal to the statewide concern expressed by the voters that candidates expressing extremist messages should be required to raise their own campaign contributions and not rely on public financing.” (Italics added.) In other words, petitioners appear to assert there is a legitimate statewide concern regarding the funding of political campaigns of candidates who are “extremists“—i.e., outside the mainstream of political thinking. They fail, however, to explain what legitimate interest the state might have in discriminating against “non-mainstream” candidates who otherwise qualify for matching funds under the objective eligibility criteria for receiving such funds.19 Accordingly, we reject this ground of alleged statewide concern.20
Finally, petitioners assert: (i) the “integrity of the electoral process” is itself a statewide conсern; (ii)
We have no reason to doubt petitioners’ major premise; the integrity of the electoral process, at both the state and local level, is undoubtedly a statewide concern. The basis for this conclusion was well stated in an Attorney General opinion in 1960, in support of a conclusion that a charter city candidate is obligated to comply with statewide campaign financial disclosure provisions:
“Purity of all elections is a matter of statewide concern, not just a municipal affair. . . . The Legislature . . . has found that it is in the public interest that full and detailed disclosure be made of all contributions and expenditures in election campaigns. It was pointed out that such disclosure had a strong tendency to discourage excessive contributions and corrupt contributions. . . . [¶] So important is the independence and integrity of all elected officials that the reporting of campaign receipts and disbursements is the concern of the entire state as well as of the local communities [citations]. Elected officials of the various municipalities chartered and non-chartered throughout the state of California exercise a substantial amount of executive and legislative power over the people of the state of California, and this legislation aimed at obtaining the election of persons free from domination by self-seeking individuals or pressure groups is a matter of statewide concern.” (35 Ops.Cal.Atty.Gen. 230, 231-232 (1960).)
Although we accept petitioners’ major premise, we question their minor premise, that
In conclusion, we reject petitioners’ attempt to establish a statewide concern by pointing to: (i) the drafters’ and voters’ intent to establish a uniform rule pertaining to the financing of election campaigns; (ii) the asserted statewide interest in how local tax proceeds are spent; and (iii) an asserted legitimate statewide concern regarding the funding of political campaigns of candidates who are outside the mainstream of political thinking. We agree with petitioners however, that Proposition 73 may be read to identify “the integrity of the electoral process” as a legitimate statewide concern. We now address whether
Petitioners cite nothing to support the proposition that
The Court of Appeal below agreed: “[T]he use of public funds for campaign financing will not, almost by definition, have a corrupting influence. [Instead] . . . it seems obvious that public money reduces rather than increases the fundraising pressures on public office seekers and thereby reduces the undue influence of special interest groups. . . . [Moreover], the goals of campaign reform and reduction of election costs, including the reduction of the influence of special interest groups and large contributors, is in no way embarrassed by public financing. To the contrary, those goals can only be furthered. . . .”
To these observations we add the following. As explained above, the drafters of the Los Angeles charter amendment sought to create a measure that regulated not only campaign contributions (like Proposition 73), but that also imposed limits on spending by candidates. The drafters apparently realized that under Buckley v. Valeo, supra, 424 U.S. 1, spending limitations may not be imposed unless public financing is offered to and accepted by a candidate. (Id., at pp. 54-59 [46 L.Ed.2d at pp. 707-710]; see especially id., at p. 57, fn. 65 [46 L.Ed.2d at p. 709].) Accordingly, it appears the drafters
For all of the above reasons, we conclude
V. Conclusion
The judgment of the Court of Appeal is affirmed.
Panelli, J., Arabian, J., Baxter, J., and George, J., concurred.
KENNARD, J., Concurring.—I agree with the majority and with Justice Mosk that
In this case, petitioners maintain that Measure H conflicts with
The majority upholds Measure H under the home rule theory without deciding whether
To decide which of the two alternative legal theories argued in this case should receive priority of consideration, I begin by recognizing that the judicial power to declare either a statute or an ordinance invalid should be exercised only when strictly necessary to decide an actual controversy.1 This salutary principle serves to eliminate unnecessary friction between the legislative and judicial branches of government, and unnecessary interference with the electorate‘s right of initiative. In the words of the United States Supreme Court, exercise of the power to declare legislation invalid “is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy . . . .” (Chicago Ry. Co. v. Wellman (1892) 143 U.S. 339, 345 [36 L.Ed. 176, 179-180, 12 S.Ct. 400]; see also Ashwander v. Valley Authority (1936) 297 U.S. 288, 345 [80 L.Ed. 688, 709-710, 56 S.Ct. 466] (conc. opn. of Brandeis, J.); Syrek v. California Unemployment Insurance Appeals Board (1960) 54 Cal.2d 519, 526 [7 Cal.Rptr. 97, 354 P.2d 625].)
The most commоn basis for declaring a statute invalid is that it violates a constitutional provision. The principle that courts should avoid passing on the validity of statutes is thus related to, and frequently a particular application of, the broader principle that a court should decide a constitutional question only if it is absolutely necessary to do so. (Rosenberg v. Fleuti (1963) 374 U.S. 449, 451 [10 L.Ed.2d 1000, 1002-1003, 83 S.Ct. 1804]; People v. Leonard (1983) 34 Cal.3d 183, 187 [193 Cal.Rptr. 171 [666 P.2d 28]; People v. Williams (1976) 16 Cal.3d 663, 667 [128 Cal.Rptr. 888, 547 P.2d 1000].)
One way that courts can avoid passing on the constitutional validity of a statute is to construe the statute in a manner that avoids conflict with constitutional restrictions on legislative power. Thus, when a court is asked to nullify a statute on the ground that it violates the state or federal Constitution, the court should ” ‘first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’ ” (United States v. Thirty-Seven Photographs (1971) 402 U.S. 363, 369 [28 L.Ed.2d 822, 829-830, 91 S.Ct. 1400].)
In this case, it is not reasonably possible to construe either
As I have stated, two distinct legal theories have been proposed in defense of Measure H: the theory that Measure H takes precedence over conflicting state law under the home rule provision of the state Constitution (
As Justice Mosk points out in his concurring and dissenting opinion, the home rule theory requires us to address a question of constitutional magnitude by interpreting and applying the home rule provision of the state Constitution, and in so doing requires us to decide whether a law—Measure H—should be declared invalid. But the nonseverability theory requires us to address questions of at least equal gravity. To address that theory, this court would have to decide whether
Because we must rule on the validity of a legislative enactment under either theory, and because constitutional questions are implicated under
MOSK, J., Concurring and Dissenting.—For reasons that remain obscure to me, the majority have gone to the trouble of rendering an advisory opinion on the question whether a city charter provision conflicts with a state statute. The statute was part of a state initiative measure that has been declared essentially a “dead letter” on federal constitutional grounds by the Ninth Circuit Court of Appeals.
This is the second advisory opinion that has sprouted while we delayed recognizing the federal courts were in the process of striking down this initiative measure. (See Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 774 [274 Cal.Rptr. 787, 799 P.2d 1220] (conc. and dis. opn. of Mosk, J.).) As I will demonstrate, the portion of the measure remaining after the federal courts finished dining on it would not have appealed to the voters. The minor section relied upon by petitioners must be invalidated along with the crucial portion of the measure invalidated by the federal сourts. The result is that there is no valid statute with which the city charter can possibly conflict.
I
First, the matter of the advisory opinion. Petitioners seek to invalidate a city charter provision for partial public funding of campaigns for city elective offices. They argue that the charter provision conflicts with a state statute regulating a matter of statewide concern, and must be invalidated as a matter of state constitutional law. The statute,
Before we can reach the question whether the municipal affairs doctrine of the state Constitution permits the city to regulate election finance in a
Instead, the majority posit that because the city charter prevails both if the statewide law is invalid and under the municipal affairs doctrine, we should decide the municipal affairs question. They note also that the parties want us to decide the question, we granted review for that purpose, the briefing is good, and we have another vehicle for considering the validity of Proposition 73. (Maj. opn., ante, pp. 400-401.)
We do not decide moot issues unless they are of continuing public importance and are likely to recur. (O‘Hare v. Superior Court (1987) 43 Cal.3d 86, 91, fn. 1 [233 Cal.Rptr. 332, 729 P.2d 766]; Daly v. Superior Court (1977) 19 Cal.3d 132, 141 [137 Cal.Rptr. 14, 560 P.2d 1193]; Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716 [106 Cal.Rptr. 21, 505 P.2d 213].) The question of conflict between municipal charters and
The majority cite one case in which we reached a moot question of public import without meeting the requirement that the issue be likely to recur. (United Farm Workers of America v. Superior Court (1976) 16 Cal.3d 499, 503-504 [128 Cal.Rptr. 209, 546 P.2d 713] [hereafter United Farm Workers].) But we simply omitted explicit discussion of the requirement; the authority we cited for the proposition that a reviewing court may retain an otherwise moot case if it is of sufficient public importance did state the requirement that the issue be a recurring one. (Gordon v. Justice Court (1974) 12 Cal.3d 323, 326, fn. 1 [115 Cal.Rptr. 632, 525 P.2d 72, 71 A.L.R.3d 551].) Obviously, the issue before us in United Farm Workers, supra, 16 Cal.3d 499, that is, whether a class action will lie to restrain a labor union‘s picketing activities, was likely to recur. To rely on United Farm Workers for the proposition that a moot issue may be decided though it is unlikely to recur would be to violate the axiom that cases are not authority for propositions not considered therein. (People v. Toro (1989) 47 Cal.3d 966, 978, fn. 7 [254 Cal.Rptr. 811, 766 P.2d 577]; People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [82 Cal.Rptr. 724, 462 P.2d 580].)
There is another reason that the majority err in taking on the municipal affairs issue in this case. ” [W]e do not reach constitutional questions unless
II
On the June 1988 General Election ballot there appeared Proposition 73, a measure that proposed to add a chapter containing four articles to the Government Code. Article 1 provided a number of definitions of terms and disclaimers, and a full title of the chapter, as follows: “Campaign Contribution Limits Without Taxpayer Financing Amendments to the Political Reform Act.” (
The Ninth Circuit Court of Appeals has affirmed the decisiоn of the federal district court invalidating the limitations imposed by Proposition 73 on campaign contributions. (Service Emp. Intern. v. Fair Political Prac. Com‘n (9th Cir. 1992) 955 F.2d 1312, cert. den. U.S. [120 L.Ed.2d 922, 112 S.Ct. 3056].) Because the proposition limited contributions during any fiscal year, rather than, for example, during the election cycle, the
The reviewing court agreed that Proposition 73 also imposed an unconstitutional expenditure limitation because, in prohibiting inter- and intracandidate transfers of funds, it limited the purposes for which money raised by a candidate may be spent. “Expenditure limitations are subject to strict scrutiny and will be upheld only if they are ‘narrowly tailored to serve a compelling state interest.’ ” (Service Emp. Intern. v. Fair Political Prac. Com‘n, supra, 955 F.2d at p. 1322.) The limitations imposed by Proposition 73 failed to survive strict scrutiny. Finally, the сourt agreed that the proposition‘s limitation on the use of funds collected prior to its operative date could not survive the demise of the contribution limitation provisions of the enactment. (955 F.2d at p. 1323.)
Neither the district court nor the Court of Appeals was called upon to address the question whether the prohibition on the use of public funds contained in Proposition 73 was severable from the invalidated portions of the enactment. It is this provision,
In CalFarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821 [258 Cal.Rptr. 161, 771 P.2d 1247], we explained that “[t]he cases prescribe three criteria for severability: the invalid provision must be grammatically, functionally and volitionally separable.” (Id. at pp. 821-822.) The first two criteria are met in this case; the only question concerns the last criterion. A Court of Appeal decision upon which we relied in CalFarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d 805, admirably defines the volitional element: “[T]he provisions to be severed must be so presented to the electorate in the initiative that their significance may be seen and independently evaluated in the light of the assigned purposes of the enactment. The test is whether it can
Proposition 73 contains a severability clause.3 ” ‘Although not conclusive, a severability clause normally calls for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable. . . . Such a clause plus the ability to mechanically sever the invalid part while normally allowing severability, does not conclusively dictate it. The final determination depends on whether “the remainder . . . is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidity of the statute” . . . or “constitutes a completely operative expression of the legislative intent . . . [and is not] so connected with the rest of the statue as to be inseparable.” ’ ” (Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 331 [118 Cal.Rptr. 637, 530 P.2d 605], quoted with approval in CalFarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d at p. 821.)
Though I have no crystal ball, it is highly unlikely that the electorate would have enacted the ban on public financing in the absence of the campaign finance reform provisions invalidated by the federal courts. Thus, for instance, the title of the measure inextricably linked the two concepts, calling for “Campaign Contribution Limits Without Public Taxpayer Financing.” (
In no way was the prohibition against public funding presented as an end in itself. In fact California had no public funding of elections at the statewide
While portions of the argument of the proponents of Proposition 73 were devoted to persuading the voters, for example, that “TAXPAYER FINANCING OF POLITICAL CAMPAIGNS MAKES NO SENSE” (Ballot Pamp., supra, argument in favor of Prop. 73, p. 34, capitalization in original), the argument was directed at a competing initiative, not at establishing the independent need for a ban on public financing. At the same election, the voters were offered Proposition 68, an initiative measure providing for campaign finance reform with partial public financing. The proponents of Proposition 73 offered their package of reform with no public financing as an alternative. Again, there is no indication at all that the prohibition against public financing was seen as an end in itself, even by the proponents of Proposition 73. Such an end would have been particularly pointless, as the state had no public financing of statewide elections—unless the rival reform package were to be enacted.
I acknowledge that the Court of Appeal in this case reached a different conclusion, finding the prohibition of public financing severable from the portions of Proposition 73 held invalid by the federal courts. The Court of Appeal turned to the other campaign finance reform measure on the June 1988 ballot, Proposition 68, which prevailed by a narrower margin than Proposition 73. Proposition 68 also contained campaign funding reform, but with spending limits, and as I have noted, some public funding. The Court of Appeal surmised that because fewer voters approved Proposition 68 than approved Proposition 73, the majority of voters were opposed to public funding of campaigns. The Court of Appeal concluded: “If any conclusion can confidently be drawn from the election which resulted in the approval of both . . . propositions, but with different majorities, it is that the voters wanted extensive campaign financing reform but that they did not want to do it with public money. We have no trouble concluding that had the voters known that some of Proposition 73‘s contribution . . . limitations might be held invalid, they nonetheless would have supported the proscription on public financing.”
The voters may have wanted “extensive campaign finance reform,” but they are not going to get it from Proposition 73, as all the finance reform provisions have been invalidated by the federal courts.4 The question whether we can be confident that the voters would have wanted a prohibition
That Proposition 73 was offered to the voters as a package deal, and not a smorgasbord, has already been confirmed by this court in another context. In Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com., supra, 51 Cal.3d 744, we refused to parse the terms of Propositions 73 and 68 to find an amalgam that we thought would have been palatable to the majority of voters. We were persuaded that Proposition 73 was intended as an all-or-nothing alternative to Proposition 68; a whole, and not a sum of parts. “We conclude that, unless a contrary intent is apparent in the ballot measures, when two or more measures are competing initiatives, either because they are expressly offered as ‘all-or-nothing’ alternatives or because each creates a comprehensive regulatory scheme related to the same subject, [the state Constitution] mandates that only the provisions of the measure receiving the highest number of affirmative votes be enforced.” (51 Cal.3d at p. 747.)
We clearly viewed Proposition 73 as a package offering in Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com., supra, 51 Cal.3d 744. To remain consistent with our position in that case, we should refuse to find the ban on public finance contained in Proposition 73 severable.
III
As
I would affirm the judgment of the Court of Appeal discharging the alternative writ, denying thе peremptory writ of mandate, and dissolving the