Lead Opinion
Opinion
I. Introduction and Summary
In 1988 the voters enacted Proposition 73, which was designed to reform financing of statewide and local political campaigns. (See Gov. Code, §§ 82041.5, 85100-85400, 89001.)
In 1990, in a suit in which petitioners in the present litigation were allowed to intervene on behalf of the defendant (respondent herein Fair Political Practices Commission), the federal district court held the “fiscal year” measure of sections 85301-85303 unconstitutional, and enjoined enforcement of those sections and section 85304. (Service Employees v. Fair Political Practices (E.D.Cal. 1990)
In this original proceeding (see Cal. Const., art. VI, § 10; Cal. Rules of Court, rule 56(a)) brought by petitioners State Senator Quentin Kopp and Assemblyman Ross Johnson, cosponsors of Proposition 73, we issued an alternative writ of mandate to respondent Fair Political Practices Commission directing it to show cause why a peremptory writ of mandate should not issue ordering respondent to enforce sections 85301-85304. Respondent filed an answer taking a neutral position on the issue. We granted the motions of Common Cause to intervene on behalf of petitioners, and of the California Legislature and four legislators
The issue is one of state law: assuming enforcement of the challenged sections as enacted would violate the federal Constitution, may, and if so, should, the statutes be judicially reformed in a manner that avoids the fiscal year measure?
We also reject the view that a court lacks authority to rewrite a statute in order to preserve its constitutionality or that the separation of powers doctrine, which vests legislative power in the Legislature and judicial power in the courts (Cal. Const., art. IV, § 1; id., art. VI, § 1), invariably precludes such judicial rewriting. Under established decisions of this court and the United States Supreme Court, a reviewing court may, in appropriate circumstances, and consistently with the separation of powers doctrine, reform a statute to conform it to constitutional requirements in lieu of simply declaring it unconstitutional and unenforceable, The guiding principle is consistency with the Legislature’s (or, as here, the electorate’s) intent: a court may reform a statute to satisfy constitutional requirements if it can conclude with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred such a reformed version of the statute to invalidation of the statute. We conclude, however, that we should not reform section 85304 and, under this test, we may not reform sections 85301(a), 85302, or 85303(a) and (b).
We will not reform the “inter-candidate” aspect of section 85304’s transfer ban because the federal appeals court found that section unconstitutional on First Amendment and overbreadth grounds unrelated to reformation of the fiscal year measures of sections 85301(a) and 85303(a) and (b), and hence its order in this regard will not be implicated by our judgment herein, whether or not we reform the latter two sections.
Nor will we reform section 85301(a) or section 85303(a) and (b)—each of which regulates contributions to individual candidates—because, as illustrated by the starkly divergent positions of petitioners and intervener on their behalf, on one hand, and the justices joining Justice Baxter’s concurring and dissenting opinion, on the other hand, the statutes cannot be reformed in a fashion that closely effectuates policy judgments clearly articulated by the electorate. Specifically, because the “per election” approach advocated by petitioners and Common Cause would allow candidates less funding than the electorate contemplated, and because the so-called “modified election cycle” reformation advocated by Justice Baxter’s concurring and dissenting opinion would allow candidates more funds than the electorate planned (and would
Finally, for related reasons, we will not reform section 85302, which regulates contributions to political committees or parties.
II. Background: Litigation Concerning Proposition 73
In Service Employees I, supra,
The federal district court found the fiscal year provisions of the three contribution limitation sections (§§ 85301-85303) unconstitutional because they would have the effect of discriminating in favor of incumbents. Relying on expert testimony presented at trial, the court noted that incumbents typically begin to solicit campaign contributions during each of the years of incumbency, but that challengers generally do not (and, as a practical matter, cannot) do so, because unlike incumbents, they typically do not decide to run for office years in advance of an election. (
After resolving this federal constitutional issue the court turned to an issue of state law, i.e., whether the constitutionally invalid “fiscal year” provision of the contribution limitation sections (§§ 85301-85303) might be severed from those sections. (
Next, the federal district court addressed 85304’s transfer bans. It found the intra-candidate transfer ban to be an unconstitutional spending limitation, and permanently enjoined its enforcement. (See Service Employees I, supra,
A month after the federal district court’s decision in Service Employees I, supra, we held that Proposition 73 prevailed over Proposition 68, an alternative campaign reform measure that had garnered a lesser majority vote at the 1988 Primary Election. (Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990)
The federal appeals court agreed that the fiscal year measure employed in sections 85301 through 85303 would have the effect of discriminating in favor of incumbents, and it found a violation of the First Amendment because the state failed to show that “the discrimination itself is necessary to serve a substantial governmental interest.” (Service Employees II, supra,
The federal appeals court then addressed section 85304’s two transfer bans. It affirmed the federal district court’s invalidation of the intra-candidate transfer ban, and, as noted above, that aspect of section 85304 is not implicated by the present litigation. Finally, the federal appeals court affirmed the district court’s permanent injunction against enforcement of section 85304’s inter-candidate transfer ban. It first acknowledged the defendants’ claim that the ban was necessary in order to prevent circumvention of the contribution regulations, but concluded, as had the district court, that the ban “cannot serve this purpose in the absence of valid contribution limits.” (
We subsequently held in Gerken v. Fair Political Practices Com. (1993) 6. Cal.4th 707 [
Our three opinions in Gerken, supra,
III. Whether We May Consider the Issues Raised in This Writ Petition
A. Res judicata!collateral estoppel
“The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.” (Bernhard v. Bank of America (1942)
State courts “are the principal expositors of state law.” (Moore v. Sims (1979)
Petitioners and intervener on their behalf suggest that because a federal court lacks authority authoritatively to construe or reform a state law (Moore v. Sims, supra,
In City of Sacramento v. State of California (1990)
Applying that rule to the facts before us, we concluded: “Yet the consequences of any error transcend those which would apply to mere private parties. If the result of [the earlier litigation] is wrong but unimpeachable, taxpayers statewide will suffer unjustly the consequences of the state’s continuing obligation to fund [the state mandate]. On the other hand, if the state fails to appropriate the funds to meet this obligation, and [the law extending unemployment insurance requirements to local governments] cannot be enforced [citations], the resulting failure to comply with federal law could cost California employers millions.” (City of Sacramento v. State of California, supra, 50 Cal.3d at pp. 64-65, fn. omitted; accord, Arcadia Unified School Dist. v. State Dept, of Education (1992)
In a related argument, interveners for respondent assert that when the federal courts declared sections 85301-85304 unconstitutional, those statutes ceased to exist, and hence cannot be judicially reformed because there is nothing left to reform. They cite authority for the proposition that an invalidated statute “is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” (Norton v. Shelby County (1886)
As petitioners observe, more recent decisions have approached the problem differently from Norton, supra,
In any event, we note that neither decision of the federal courts in the Service Employees litigation purported to “invalidate” the statutes at issue here, as interveners on behalf of respondent use that term. The federal district court concluded that “because [sections 85301-85303] are measured by a fiscal year, they violate the Constitution of the United States and are unenforceable.” (Service Employees I, supra,
To the extent interveners on behalf of respondent suggest a statute that has been labeled “constitutionally invalid” is to be treated “as though it had never been passed,” and hence as not susceptible to judicial reformation, Dombrowski v. Pfister, supra,
Numerous other decisions have long recognized the propriety of such judicial action. (See, e.g., In re Edgar M. (1975)
C. Summary
We summarize our disposition of interveners’ objections to consideration of the state law reformation issue in this writ proceeding as follows: when faced with a question of whether to reform a state statute, the function of a federal court is to divine, to the best of its ability, how the state’s highest court would resolve that state law issue. (Eubanks v. Wilkinson, supra,
Contrary to suggestions of interveners on behalf of respondent, we conclude that a state supreme court is not constrained by principles of res judicata, collateral estoppel, or comity, to keep silent on a state law statutory reformation issue, when the question is presented to it in litigation such as
For these reasons we issued an order to show cause in this matter, and now proceed to address the issue presented therein, namely, whether we may, and if so, should reform and order respondent to enforce sections 85301(a), 85302, 85303(a) and (b), and the inter-candidate transfer ban of section 85304.
IV. The Authority of a Court to Reform a Statute to Preserve its Constitutionality
Interveners and amicus curiae on behalf of respondent assert this court lacks authority to reform statutes, and that if we were to claim such authority, we would step out of legitimate judicial bounds and improperly invade the Legislature’s domain. They rely on numerous cases such as Metromedia, Inc. v. City of San Diego (1982)
Because much of the jurisprudence of our own cases rests on and flows from decisions of the United States Supreme Court addressing judicial authority to reform statutes to preserve them against constitutional infirmity, we will first survey in some detail decisions of the high court, and to a lesser extent, lower federal and state courts. (Post, pt. IV. A.) Thereafter, we will review California cases on that question (post, pt. IV. B.), and finally, as
A. Reformation of enactments by the United States Supreme Court and other courts
1. The jurisprudential!constitutional foundation of a court’s power to reform a statute to preserve its constitutionality: Justice Harlan’s concurring opinion in Welsh v. United States
Modem authority for the judicial power of reformation to preserve constitutionality may be traced to the concurring opinion of Justice John Harlan in Welsh v. United States (1970)
Justice Harlan concurred separately to disavow the plurality’s reasoning. He asserted the plurality’s judgment effectively eliminated the statute’s exclusion from protection for those with nonreligious beliefs, but he nevertheless concurred in that result, “not as a matter of statutory construction,” but on the ground that under the circumstances it was appropriate for the court to judicially reform the statute. (Welsh, supra,
Justice Harlan determined that, properly construed, the statute ran afoul of the First Amendment’s establishment clause. (Welsh, supra,
Justice Harlan reasoned that because the statute “created a religious benefit not accorded to petitioner, it is clear to me that his conviction must be reversed under the Establishment Clause of the First Amendment unless Welsh is to go remediless.” (Welsh, supra,
Justice Harlan then quoted the statute’s severability clause, and asserted: “In exercising the broad discretion conferred by a severability clause it is, of
As explained below, even before Welsh, supra, and more frequently since that decision, the high court has followed Justice Harlan’s remedial approach in order to preserve the constitutionality of statutes, and in the process it has effectively rewritten various federal and some state statutes. We outline below three general categories of cases in which reformation has occurred: (i) cases concerning procedural safeguards required by the First Amendment and/or principles of procedural due process; (ii) cases concerning classifications underinclusive under the equal protection cause; and (iii) cases concerning otherwise vague or overbroad criminal statutes.
2. Reformation of statutes to avoid First Amendment and procedural due process problems
Thirty-Seven Photographs, supra,
The first issue was resolved in an opinion by Justice White, who noted that the court had previously invalidated, as violations of the procedural due process guarantee, three similar state, local, and federal laws that likewise failed to provide for prompt judicial review of “administrative censorship” actions. (Freedman v. Maryland (1965)
Justice White explained that “[n]o such obstacles confront us in construing § 1305(a). In fact, the reading into the section of the time limits required by Freedman is fully consistent with its legislative purpose.” (Thirty-Seven Photographs, supra,
After reviewing lower court cases involving substantial delays in the commencement and completion of judicial proceedings (Thirty-Seven Photographs, supra, 402 U.S. at pp. 371-372 [28 L.Ed.2d at pp. 381-382]), the court announced that “fidelity to Congress’ purpose dictates that we read explicit time limits into the section. The only alternative would be to hold § 1305(a) unconstitutional in its entirety, but Congress has explicitly directed that the section not be invalidated in its entirety merely because its application to some persons be adjudged unlawful.” (
The court observed that in many of the lower court cases the “Government in fact instituted forfeiture proceedings within 14 days of the date of seizure of the allegedly obscene goods, [citations]; and judicial proceedings were completed within 60 days of their commencement. [Citations.]” (Thirty-Seven Photographs, supra,
Justice Harlan, who less than a year earlier articulated his view of permissible judicial reformation of underinclusive statutes in his concurring opinion in Welsh, supra,
Lower federal circuit courts and state courts have followed Thirty-Seven Photographs, supra,
3. Judicial reformation of statutes underinclusive under the equal protection clause
Even before Justice Harlan’s concurring opinion in Welsh, supra,
In Graham v. Richardson (1971)
Thereafter, the court continued to affirm judgments extending statutes,
Then, in Califano v. Westcott (1979)
The high court subsequently affirmed and applied its judicial extension doctrine in Wengler v. Druggists Mutual Ins. Co., supra,
Thereafter, the high court expressly reaffirmed the propriety of the judicial extension remedy. (Heckler v. Matthews (1984)
Most recently, in Davis v. Michigan Dept, of Treasury, supra,
In response to the high court’s practice of deferring to state courts to select extension or invalidation of underinclusive state statutes, our sister state courts have, with only one remarkable exception (ante, fn. 25), regularly followed the principles articulated by Justice Harlan in Welsh, supra,
Finally, the high court has endorsed the propriety of judicial reformation of statutes in the context of otherwise vague or overbroad criminal statutes— namely, criminal obscenity statutes—and has encouraged state courts to do so as well.
In Miller v. California (1973)
Justice Brennan, dissenting in a companion case (Paris Adult Theater I v. Slaton (1973)
In the cited footnote 7 of United States v. 12 200-Ft. Reels of Film (1973)
Subsequently, citing footnote 7 of 12 200-Ft. Reels of Film, supra,
More recently, in Brockett v. Spokane Arcades, Inc. (1985)
The court first declined to construe the term “lust” as referring only to conduct that could properly be regulated. (Spokane Arcades, supra, All U.S. at pp. 500-501 [86 L.Ed.2d at pp. 403-404].)
Although all decisions in which courts preserve enactments by severance are to some extent examples of judicial reformation, the significance of Spokane Arcades, supra,
B. Reformation of statutes by California courts
Our own cases reveal that, consistently with Welsh, supra, and its numerous high court predecessors and progeny, it is appropriate in some situations for courts to reform—i.e., “rewrite”—enactments in order to avoid constitutional infirmity, when doing so “is more consistent with legislative intent than the result that would attend outright invalidation.” (Arp v. Workers’ Comp. Appeals Bd. (1977)
1. Guiding principles: the Arp case
Although Arp, supra,
In Arp, supra, a unanimous opinion by Justice Richardson, we considered a widower’s challenge to a section of the Labor Code governing workers’ compensation benefits. Former Labor Code section 3501, subdivision (a), provided that a widow was conclusively presumed to be totally dependent on her deceased husband, but created no such presumption for a widower. Instead, under the statutory scheme, a widower was forced to establish the fact and extent of dependency on his deceased wife. Following high court decisions cited above (e.g., Frontiero v. Richardson, supra,
We then addressed “the question of remedy. Petitioner urges upon us the course adopted in Goldfarb, Wiesenfeld and Frontiero: extension of statutory benefits to males and females alike, without regard to actual dependency. [Citation.] [f] Although courts do not lack the power to remedy a constitutional defect by literally rewriting statutory language, it is a comparatively drastic alternative, to be invoked sparingly, and only when the result achieved by such a course is more consistent with legislative intent than the result that would attend outright invalidation. [Citations.]” (Arp, supra, 19 Cal.3d at pp. 407-408, italics added.)
We noted that in Weinberger v. Wiesenfeld, supra,
We concluded, however, that “[o]ur own case is somewhat different,” in that there was “clear, if antique” evidence that the Legislature “did not want widowers to receive compensation in excess of their actual, demonstrable financial loss: it repealed the original limited presumption affording surviving husbands total dependency benefits on a showing of only partial dependency. [Citations.]” (19 Cal.3d at pp. 408-409, italics in original.) In addition, we observed that extension in such “benefits” cases posed a special problem that militated in favor of legislative reformation. We observed that “[s]uch action would undoubtedly have some impact on workers’ compensation insurance rates, since the present rate structure presumably has been carefully calculated without reference to the additional risk of maximum
Arp, supra,
2. Reformation of statutes to avoid vagueness, overbreadth, or procedural due process problems
In a substantial number of cases we have imposed saving constructions on otherwise unconstitutionally vague terms, thus preserving statutes while at the same time adding a crucial judicial gloss that, in practical effect, operates as a judicial reformation of the statute. As noted above, one such case was Bloom v. Municipal Court, supra,
Thereafter, in Pryor v. Municipal Court (1979)
In numerous other cases we have similarly reformed partly overbroad or vague statutes—and in doing so imposed what amounts to a judicial reformation of the statutory terms. (See, e.g., City of Los Angeles v. Belridge Oil Co.(1954)
3. Reformation of statutes to avoid violation of state constitutional prohibition
In re Edgar M., supra,
Our opinion explained: “We believe that the legislative intent will be more fully effectuated within the constitutional restraint by altering the operative effect of these sentences rather than striking them altogether. The quoted portion of section 558 provides that if the proceedings before the referee have not been taken down by an official reporter, an application for rehearing must be granted as a matter of right. If the proceedings have been taken down by a reporter but the judge does not... act on the application within the required period, the proceedings should be treated as a practical matter as if they had been unreported. Thus we conclude that we can best harmonize the statutory purpose with the constitutional command by requiring that applications which would be ‘deemed denied’ under the section’s literal wording be instead granted as of right, thereby applying to unacted-upon applications based on reported proceedings the rule which the Legislature has laid down for applications based on unreported proceedings.” (Edgar M., supra,
Amicus curiae on behalf of respondent attempts to dismiss Edgar M. as an aberration—“to say the least, an unusual case . . . [embodying a] ‘forced,
4. Reformation of underinclusive enactments to avoid First Amendment problems
In City and County of San Francisco v. Eller Outdoor Advertising (1987)
The suspect categories of exempted signs were contained in four subdivisions of section 603 of the ordinance. Subdivision (c) exempted “ ‘Temporary display posters, without independent structural support, in connection with political campaigns and with civic non-commercial health, safety, and welfare campaigns’ subdivision (d) exempted “ ‘[temporary displays of a patriotic, religious, charitable or civic character’ subdivision (f) exempted “ ‘Commemorative plaques’ and subdivision (h) exempted “ ‘Religious symbols attached to buildings . . . .’” (Eller, supra, 192 Cal.App.3d at pp. 649-650, fn. 3.)
Following decisions of the high court, the Court of Appeal concluded that by these exemptions the city had impermissibly attempted “ ‘in the area of noncommercial speech[,] to evaluate the strength of, or distinguish between, various communicative interests. [Citations.] With respect to noncommercial speech, the City may not choose the appropriate subjects for public discourse. . . .’” (Eller, supra, 192 Cal.App.3d at pp. 661-662, quoting Metro-media, Inc. v. San Diego (1981)
The court concluded: “In light of the ordinance’s apparent purpose to allow most forms of noncommercial speech, little violence is done to the legislative purpose to interpret the exceptions created in subdivisions (c) and (d) of section 603 to embrace all categories of noncommercial messages, thereby preserving the ordinance’s neutrality and saving it from the constitutional problem raised by the United States Supreme Court in Metromedia[, Inc. v. San Diego, supra,
In other words, the Eller court reformed section 603 of San Francisco’s ordinance by, inter alia, extending the exemption for most noncommercial signs to all noncommercial signs. In practical effect, the court rewrote the section to apply to “All noncommercial signs, including” those listed in the various subdivisions, in order to effectuate the local legislature’s intent.
5. Reformation of underinclusive statutes to avoid equal protection violation
Even before Arp, supra,
Two years later, in Sykes v. Superior Court (1973)
Most recently, in a unanimous opinion by Justice Mosk, we followed these cases and the high court cases discussed ante, at pages 632-636, and reformed two benefits statutes that we found “invalid” under the equal protection clause. (Del Monte v. Wilson, supra,
Amicus curiae for respondent asserts that Del Monte v. Wilson, supra,
The first asserted distinction is unpersuasive. Amicus curiae suggests the equal protection/underinclusion cases are distinguishable on the ground that the remedy of extension is different in kind from the reformation under consideration here because extension cases do not involve “rewriting” of statutes. Justice Harlan undermined this argument in his concurring opinion in Welsh, supra,
Amicus curiae is correct that many of the equal protection/extension cases involve situations in which invalidation would cause injury to “a large number of people.” Indeed, this is a persuasive consideration that often influences a court’s assessment of whether the enacting body would prefer a reformed version of a statute over invalidation of the statute. But, contrary to amicus curiae’s suggestion, there is no reason why the absence of this particular consideration should preclude reformation in appropriate cases outside the equal protection/underinclusion context, so long as a court may discern from other factors that the Legislature (here, the electorate) would have intended reformation over invalidation.
In one respect, the equal protection cases are distinguishable from the present litigation. The distinction, however, does not assist amicus curiae or interveners for respondent. The equal protection cases in which courts have “extended” statutes effectuate broad legislative policy judgments granting benefits to a named class, while declining to respect other policy judgments improperly limiting those benefits to the named class. In other words, these cases reflect a limited judicial encroachment into the Legislature’s policy-making domain, to the extent they elevate one “major” legislative policy judgment (e.g., granting benefits to some veterans) over a related, “minor” policy judgment (e.g., excluding certain veterans from benefits). As amicus curiae for respondent suggests, courts have apparently assumed that this limited encroachment into the legislative policy domain is justified in many equal protection/underinclusion cases on grounds akin to estoppel—i.e., as
With this caveat, we conclude the equal protection decisions are persuasive examples of judicial “rewriting” and that, in combination with the other categories of cases discussed above, they support the proposition that a court may, in appropriate cases, “rewrite” a statute to preserve its constitutionality.
C. Cases broadly asserting courts lack authority to “rewrite” statutes in order to preserve them against invalidity under the Constitution
As noted previously, amicus curiae and interveners on behalf of respondent assert we lack authority to reform a statute in order to make the law consistent with the Constitution. The high court, sister-state, and California cases discussed immediately above (pt. IV. A. & B.) amply refute that assertion. As we explain below, those decisions also serve to distinguish the numerous cases relied on by amicus curiae and interveners on behalf of respondent, in which we (and the high court) have broadly stated that a court lacks authority to “rewrite” a statute even to preserve its constitutionality.
As interveners and amicus curiae on behalf of respondent note, one of our most recent assertions in this regard was in Metromedia, Inc. v. City of San Diego, supra,
Close examination of the numerous cases cited by interveners and amicus curiae on behalf of respondent reveals, however, that with one antique
Metromedia, Inc. v. City of San Diego, supra,
We began our discussion with the statement quoted above (and by interveners and amicus curiae on behalf of respondent), to the effect that we may not, in the exercise of our power to interpret or construe a statute consistently with the constitution, “rewrite” it. (Metromedia III, supra,
Metromedia III, supra, was thus a case in which judicial reformation was inappropriate: It was impossible to reform the ordinance in a manner that closely effectuated policy judgments clearly articulated by the local legislature.
All but one of the remaining cases cited by amicus curiae and interveners on behalf of respondent are also distinguishable. In many of the cases, reformation designed to closely effectuate the enacting body’s policy judgments was impossible because the enacting body’s intent was plainly inconsistent with a saving or reformed construction of the enactment.
Other cases cited by interveners and amicus curiae on behalf of respondent illustrate another important limitation on a court’s authority to reform statutes: they concern situations in which crucial policy judgments were not clearly articulated by the enacting body, and in which it was thus impossible to reform unconstitutional enactments because doing so would have required the court to substitute or render policy judgments. In Blair v. Pitchess, supra,
Finally, two cases cited by interveners on behalf of respondent actually hold reformation to be appropriate, and hence do not support their view.
As we acknowledged above, one antique case cited by interveners and amicus curiae on behalf of respondent supports their view. But, as explained below, it also serves to illustrate why courts have, in the intervening century, cautiously recognized the propriety of judicial reformation in order to preserve the constitutionality of statutes.
People v. Perry (1889)
The court, with only four justices participating in the case, held the clause of the statute fixing the term at five years unconstitutional. It rejected Perry’s suggestion that the statute be reformed to set out a four-year term, and concluded that because “no term has been declared by law, . . . [Perry] held
Although the Perry court’s reluctance to reform the statute in order to preserve its constitutionality was consistent with the jurisprudence of the day (in which, for example, common and nonprejudicial errors in criminal litigation regularly gave rise to reversals of judgments), we conclude Perry’s 19th century view of the permissible judicial role regarding reformation of otherwise unconstitutional statutes is dubious authority today. Indeed, in hindsight, it is apparent that the court’s professed reluctance to invade the legislative domain actually did far more violence to the legislative scheme than would the proposed reformation. (See 2A Sutherland, Statutory Construction, supra, §47.38, p. 291, quoted ante, at p. 658.) The Legislature plainly intended to establish an office of fixed term lasting for as many years as the Constitution allowed. The Perry court’s refusal to reform the statute to provide for a four-year fixed term wholly frustrated the Legislature’s clear and principal intent. Moreover, as explained, ante, at pages 641-653, the result in Perry is inconsistent with the case law of this court over the past two decades. For these reasons, although we agree with interveners that Perry, supra, supports their position, we decline to afford that case any weight.
Although we do not otherwise question the analysis or holdings of the cases relied on by amicus curiae and interveners on behalf of respondent, for the reasons set out above we conclude the various cited statements from Metromedia III, supra,
D. Summary: the propriety of, and standards for, judicial reformation of statutes
In all of the high court and California cases discussed ante, part IV. A. and B., the underlying principle is the same. Contrary to dictum in cases like Metromedia III, supra,
In articulating a reformation designed to effectuate the Legislature’s or electorate’s intent, courts search for phrasing that would disturb as little as possible the language of the statutes as enacted. At the same time, however, we focus not only on the number of words involved in a proposed reformation, but more important, on the quality of the proposed change. As a general matter, it is impermissible for a court to reform by supplying terms that disserve the Legislature’s or electorate’s policy choices.
In summary, and to paraphrase Justice Ginsburg, supra, 23 Clev. St. L.Rev. at page 324, we conclude courts may legitimately employ the power to reform in order to effectuate policy judgments clearly articulated by the Legislature or electorate, when invalidating a statute would be far more destructive of the electorate’s will. And, “of course . . . ultimate authority to recast or scrap the law in question remains with the political branches [and, as in this case, the electorate].” (Ibid.)
V. Reformation of Initiative Statutes
Interveners on behalf of respondent assert courts are precluded from reforming initiative statutes, because such judicial action would operate free from the procedural protections that apply to legislative amendment of initiative statutes. Petitioners and intervener on their behalf, joined by the dissenting justices today, advance the opposite view, asserting a court should be especially willing to reform initiative statutes, especially those that concern legislative elections. We accept neither view.
Interveners on behalf of respondents observe that initiative statutes, “[f]or better or worse ... are meant to be set in stone. The Legislature is prohibited from amending them without going back to the people” unless the initiative provides otherwise. (See Cal. Const., art. II, § 10, subd. (c) [The Legislature “may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.”].) Proposition 73 permits legislative amendment “to further its purposes,” but allows such amendment only by a two-thirds vote. (§§ 81012, subd. (a), 85103.) Interveners on behalf of respondent conclude that judicial reformation of the statutes at issue here is tantamount to an amendment of them, and that such action is barred by article II, section 10, subdivision (c) of the state Constitution.
We reject the view that courts are barred from reforming initiative statutes. As described above, we have recognized and applied substantial safeguards to ensure both that any proposed reformation closely effectuates policy judgments clearly articulated by the electorate, and that the electorate would have preferred the reformed version of the statute over the constitutionally invalid and unenforceable version. More important, nothing we might do by way of reformation would impair the Legislature’s authority under article II, section 10, subdivision (c) of the California Constitution, to amend or repeal initiative statutes such as section 85301(a) or section 85303(a) and (b).
Although the concerns raised by interveners on behalf of respondent do not justify a conclusion that courts are precluded from reforming initiative statutes, those same points militate against the opposite view of petitioners and their supporters, i.e., that courts should be especially willing to reform such statutes. Granted, we have said the people’s initiative power is to be
VI. Reformation of Sections 85301-85304
A. Preliminary observations regarding sections 85302 and 85304
As an initial matter, we narrow substantially the scope of our inquiry. As suggested ante, footnote 10, we view the federal courts’ decisions as reflecting an implied determination that unless the limitations on contributions to candidates set out in sections 85301(a), 85303(a) and (b) are enforceable, section 85302, which regulates contributions to political committees and parties, would itself remain unenforceable. We agree with that determination, and accordingly defer our consideration of whether section 85302 may be reformed.
We further confine the scope of our inquiry by determining, at the threshold, that there is no basis for reforming section 85304, which establishes both intra- and inter-candidate transfer bans. As explained above, the intra-candidate aspect of section 85304, which the courts found to constitute an unconstitutional spending limitation, is not at issue in this proceeding. (See ante, pp. 617 & 619; see generally, Buckley v. Valeo, supra,
We thus focus on whether sections 85301(a) and 85303(a) and (b) (regulating contributions to candidates) may be reformed in a manner that renders them constitutional.
The enjoined sections reflect three key policy judgments: First, the sections establish a maximum dollar amount for particular contributions. Second, the sections regulate the pace at which those contributions may be made. Finally, the sections implicitly establish the rights to contribute and to accept a theoretical maximum aggregate amount of funds. A proper reformation must closely effectuate each of these policy judgments.
As noted above, the federal appeals court broached the question whether the sections might be reformed or saved by merely striking the word “fiscal” from the term “fiscal year,” but declined to do so because that would create an annual measure and hence lead to the same discriminatory effect perceived as unconstitutional. We agree.
The federal appeals court also considered striking the term “fiscal year” and replacing it with the term “election cycle,” but declined do so because, it reasoned, “we would be at a loss to know what the dollar amounts of the limitations should be.” (Service Employees II, supra,
Petitioners and intervener on their behalf eschew the “election cycle” approach suggested by the federal appeals court,
We conclude, however, that such a reformation would not closely effectuate policy judgments clearly articulated by the electorate. Granted, it would retain the maximum amounts for particular contributions established
Intervener on behalf of petitioners acknowledges these consequences of the proposed “per election” reformation, but insists this approach is nevertheless consistent with the electorate’s intent. First, focusing on section 85301(a), intervener on behalf of petitioners asserts the section was not intended to “ensure that contributors would be allowed to donate up to the $4,000 . . . maximum amounts theoretically allowed for four-year offices under the initiative’s fiscal year limits. Rather, ... the voters were primarily motivated by a desire to restrict the size of particular contributions to no
As interveners and amicus curiae for respondent suggest, and as Justice Baxter’s concurring and dissenting opinion shows, the argument of intervener for petitioners does not withstand scrutiny. First, assuming for purposes of analysis that the electorate’s “primary” motivation was to restrict the size of particular contributions, this affords no ground to presume that the statute was not also purposefully designed to accomplish precisely what it would have done in practice, i.e., afford each individual or institutional contributor the opportunity to give, and each candidate the opportunity to accept, a theoretical maximum aggregate amount of contributions—in other words, up to $4,000, $10,000, and $20,000, for a Senate candidate under sections 85301(a) and 85303(a) and (b), respectively.
Second, Proposition 68 is inoperative because the voters stated a preference for its rival, Proposition 73. (Gerken, supra,
We also decline to revise the statutes in the manner suggested by Justice Baxter. He and the justices joining his concurring and dissenting opinion would reform the three statutes “to limit campaign contributions and loans to candidates to no more than $1,000 (for § 85301, subd. (a)), $2,500 (for § 85303, subd. (a)) and $5,000 (for § 85303, subd. (b)) multiplied by the number of years of the term of office sought by the candidate, and in partisan races, to further incorporate a ‘per election’ pacing mechanism so that no more than one-half the total allowable amount may be contributed prior to the primary election and no more than one-half of the total allowable amount may be contributed between the primary election and the general election.” (Conc. & dis. opn. of Baxter, J., post, at p. 689.)
Because no party advocated or anticipated a reformation similar to that suggested by Justice Baxter, we sought briefing on the issues raised by such a reformation. Our letter asked, inter alia, whether “(i) it would be necessary or possible to reform the statutes in a manner that closely replicates the total theoretical maximum contribution amounts that would have been allowed under the statutes as enacted, and (ii) would it be necessary or possible for such a judicial reformation to retain a mechanism regulating the pace of contributions, similar to that existing in the statutes as enacted?”
The opponents of reformation—interveners and amicus curiae on behalf of respondent—answered that both objectives are necessary, but neither is possible without this court engaging in extensive rewriting of the statutes or without imposing its own policy judgments in place of those reflected in the statutes as enacted.
Petitioners, although not clearly addressing the questions posed, significantly declined to embrace any suggestion that reformation must allow candidates to receive the theoretical maximum aggregate contributions that would have been allowed under Proposition 73 as enacted.
Intervener on behalf of petitioners argued it would be improper to reform the statutes in a manner that permits candidates to receive the theoretical
The supplemental brief of respondent is perhaps most significant. Respondent reaffirmed its neutrality on the ultimate question of whether the statutes should be reformed. At the same time, it strongly suggested that if we do reform, we should do so in the manner suggested by petitioners, and not in a manner that attempts to replicate the theoretical maximum aggregate contributions that would have been allowed under the statutes as written (i.e., Justice Baxter’s approach) because that would “in effect . . . raise the contribution dollar amount above the level which voters were attempting to impose” and allow last-minute lump-sum payments well over the $1,000, $2,500, and $5,000 per fiscal year limitations, thus benefiting candidates who do not face competitive primaries. In this vein, respondent’s supplemental brief repeatedly asserted that petitioners’ proposed reformation, compared with a scheme (such as proposed by Justice Baxter) that attempts to preserve total campaign contributions in the amounts allowed under Proposition 73, ubest adheres to the original statutory scheme and preserves the original intent of the electorate.” (Italics added.) Respondent also repeatedly asserted that petitioners’ approach, compared with a scheme that attempts to preserve total campaign contributions in the amounts allowed under Proposition 73, is “closest to [that] contemplated by Proposition 73.” (Italics added.)
We conclude the reasoning underlying the supplemental briefing forecloses the extensive and novel reformation proposed by Justice Baxter. Indeed, that proposed reformation is impermissible because it is the mirror image of the “per election” approach: Although it would closely effectuate the policy of protecting rights to contribute and to accept a theoretical maximum aggregate amount of funds, as explained below, it would advance that policy at the expense of doubling, and in some cases, quadrupling the maximum amount of particular contributions. Moreover, in a significant category of elections, it would impose no pacing regulation, thus allowing lump-sum contributions barred by the statutes as enacted.
Under Justice Baxter’s approach, in the 12 months before a general election, Senate candidates in partisan races would be allowed to receive $4,000 from individuals—$2,000 for the primary, and $2,000 for the general election. By contrast, under the statutes as enacted, during the same period the same candidates would have been limited to $2,000, i.e., $1,000 during the fiscal year in which the primary is held and $1,000 during the fiscal year in which the general election is held. Similarly, under Justice Baxter’s approach, in the 12 months before an election, candidates in nonpartisan local contests for 4-year terms—i.e., candidates in most mayoral, council, and supervisorial races—would be allowed to receive $4,000 from individuals at any time. Again, by contrast, under the statutes as enacted, during the same period the same candidates would have been limited to $1,000 (with the possibility of another $1,000 in the event of a runoff election held in a subsequent fiscal year).
The $1,000, $2,500, and $5,000 caps on contribution amounts set out in sections 85301(a) and 85303(a) and (b), together with the pacing mechanism limiting contributions by fiscal year, were obviously intended to limit the opportunity for lump-sum contributions at any time during a campaign. By doubling and in some cases quadrupling those contribution amounts, and by allowing a substantial category of candidates to solicit and accept those contributions in a lump sum at any time, Justice Baxter’s proposed reformation would substantially disserve the electorate’s policy choices.
Having concluded that neither proposed reformation is permissible, we need not decide whether the electorate would have preferred either of them
VII. Conclusion
Contrary to interveners and amicus curiae on behalf of respondent, the separation of powers doctrine guides, but does not invariably preclude, judicial rewriting of statutes to preserve constitutionality. Consistent with the doctrine, a court has authority to reform statutes by rewriting them to preserve constitutionality when it can conclude with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred such a reformed version of the statute to invalidation of the statute. Indeed, in an appropriate case it would be our duty to rewrite in order “to prevent unconstitutionality.” (2A Sutherland, Statutory Construction, supra, Intrinsic Aids, § 47.38, p. 291.) As observed above, the “better practice requires that a court enforce the legislative intent or statutory meaning where it is clearly manifested. The inclusion of words necessary to clear expression of the intent or meaning is in aid of legislative authority. The denial of the power to insert words when the intent or meaning is clear is more of a usurpation of the legislative power because the result can be the destruction of the legislative purpose.” (Ibid., italics added; see also id., § 47.37, p. 283; id., § 47.36, p. 277.) And, as also noted above, when legislative (or the electorate’s) intent regarding policy choice is clear, a
We also conclude, however, that reformation is inappropriate here, and cannot be accomplished consistently with the limitations placed on courts by the separation of powers doctrine. We decline to reform section 85304 because the federal appeals court’s analysis of, and conclusion regarding, that section would not be undermined by reformation of the “fiscal year” measure of sections 85301(a) and 85303(a) and (b). In turn, we may not reform sections 85301(a) and 85303(a) and (b) (and, accordingly, we may not reform section 85302) because it is impossible to do so in a manner that closely effectuates policy judgments clearly articulated by the electorate. The “per election” approach would allow persons to give, and candidates to accept, less funding than the electorate contemplated. By contrast, Justice Baxter’s novel and unsupported “modified election cycle” approach would allow candidates more funds than the electorate planned, and it would remove any regulation of the pace of contributions for the numerous nonpartisan municipal and county elections throughout the state. Because neither reformation would closely effectuate policy judgments clearly expressed by the electorate, it follows that either would impermissibly intrude on the policy-making functions reserved to the Legislature and the people (Cal. Const., art. IV, § 1), and hence neither reformation is permissible.
Accordingly, we deny the relief requested by petitioners.
Werdegar, J., concurred.
Notes
All further statutory references are to this code unless otherwise indicated.
That section reads in full as follows: “(a) No person shall make, and no candidate for elective office, or campaign treasurer, shall solicit or accept any contribution or loan which would cause the total amount contributed or loaned by that person to that candidate, including contributions or loans to all committees controlled by the candidate, to exceed one thousand dollars ($1,000) in any fiscal year. [<J] (b) The provisions of this section shall not apply to a candidate’s contribution of his or her personal funds to his or her own campaign contribution account.”
That section reads in full as follows: “No person shall make and no political committee, broad based political committee, or political party shall solicit or accept, any contribution or loan from a person which would cause the total amount contributed or loaned by that person to the same political committee, broad based political committee, or political party to exceed two thousand five hundred dollars ($2,500) in any fiscal year to make contributions to candidates for elective office.”
Section 85303 reads in full as follows: “(a) No political committee shall make, and no candidate or campaign treasurer shall solicit or accept, any contribution or loan which would cause the total amount contributed or loaned by that committee to that candidate for elective office or any committee controlled by that candidate to exceed two thousand five hundred dollars ($2,500) in any fiscal year. [^Q (b) No broad based political committee or political party shall make and no candidate or campaign treasurer shall solicit or accept, any contribution or loan which would cause the total amount contributed or loaned by that committee or political party to that candidate or any committee controlled by that candidate to exceed five
That section reads in full as follows: “No candidate for elective office or committee controlled by that candidate or candidates for elective office shall transfer any contribution to any other candidate for elective office. Transfers of funds between candidates or their controlled committees are prohibited.”
The legislator interveners are Assemblyman Willie L. Brown, Jr., and Senators Bill Lockyer, Ruben S. Ayala, and Nicholas C. Petris.
The Howard Jarvis Taxpayers Association and 31 members of the California Assembly are amici curiae on behalf of petitioners. The California Democratic Party is amicus curiae on behalf of respondent.
The term “fiscal year” is defined as covering the period between “July 1 through June 30.” (§ 85102, subd. (a).) Because at the time Proposition 73 was enacted all California primary elections were held in June, the fiscal year scheme permitted a contributor who gave a candidate the maximum allowable before the primary election, to make another maximum contribution between the primary election and the general election. (See Service Employees I, supra, 747 F.Supp. at p. 589; see also Elec. Code, § 23 [moving some California primary elections from June to March].)
An example illustrates the federal district court’s point: Section 85301(a) would allow an incumbent to accept up to $1,000 per fiscal year from an individual, thus effectively allowing an incumbent to a four-year term to accept $4,000 from an individual contributor (i.e., $1,000 per fiscal year) during the term of office. A challenger, on the other hand, although theoretically allowed to solicit that same $4,000 (or slightly more—see post, p. 665, fn. 62) during the same period, would in practice be restricted to soliciting substantially less, i.e.,
As noted above, the federal district court included section 85302 in its injunction, and the United States Court of Appeals for the Ninth Circuit affirmed that judgment. As intervener on behalf of petitioners impliedly concedes, it is reasonable to assume the courts enjoined section 85302 based on their implicit determination that unless the limitations on contributions to candidates set out in sections 85301(a) and 85303(a) and (b) are enforceable, section 85302, which regulates contributions to political committees and parties, would itself be unenforceable. (Alternatively, the courts might have impliedly determined that, in practical operation, fundraising under section 85302’s “fiscal year” regulation would indirectly produce the same “discrimination against challenger candidates” as would sections 85301(a) and 85303(a) and (b), because incumbents, better than challengers, would be positioned to solicit “section 85302 contributions” and thereafter receive all or part of those funds under section 85303(a) or (b).)
The plaintiffs challenged one additional provision of Proposition 73, i.e., the “carryover” restriction, which prohibits expenditure of campaign funds raised prior to January 1989 (§ 85306). The district court, on partial motion for summary judgment, held that provision to be an unconstitutional expenditure limitation, and permanently enjoined its enforcement. (See Service Employees Intern. Union, AFL-CIO v. FPP (E.D.Cal. 1989)
Regarding the three cited cases, see post, footnote 57.
Intervener on behalf of petitioners suggests the present litigation poses an issue of collateral estoppel (issue preclusion), not res judicata (claim preclusion). (See Clark v. Lesher (1956)
As the Ohio Supreme Court has observed, a state’s sovereignty “is unquestionably implicated when the federal court construes state law” because, if the federal court errs, “it applies law other than Ohio law, in derogation of the state’s right to prescribe a ‘rule of decision.’ ” (Scott v. Bank One Trust Co., N.A. (1991)
There the court said: “When a federal court declares part of a state statute unconstitutional, it acts under the authority of the Supremacy Clause. In order to decide the remedial issue before us—whether a federal court should supply limiting language to preserve the constitutionality of a state statute, thus making policy choices usually made by the state legislature—we must take into account a number of factors. One of those factors is the policy of the [state] respecting judicial revision of [state] statutes. . . .” (
Justice Kennard asserts we are bound by federal, and not state, law when determining whether an exception to the doctrines of res judicata or collateral estoppel applies. (Cone. & dis. opn. of Kennard, J., post, at pp. 682-683.) For this proposition the concurring and dissenting opinion cites two cases (Hagen v. Utah (1994)
Justice Kennard’s concurring and dissenting opinion also asserts that “even under state law the ‘public interest’ exception is invoked only in exceptional circumstances when it may be necessary to relieve a public agency of an erroneous earlier determination of the issue." (Post, at p. 684, italics added.) The concurring and dissenting opinion concludes that because three justices of this court find the federal courts’ determinations were not erroneous, the “public interest” exception cannot apply. (Ibid.) But the concurring and dissenting opinion misstates
The court’s dispositional order recited; “1. All contribution limitations measured on a fiscal year basis violate the provisions of the First Amendment to the Constitution of the United States and are hereby declared unenforceable; accordingly, enforcement of such provisions [is] Permanently Restrained; . . .” (Service Employees I, supra,
As noted above, the federal appeals court found section 85304’s inter-candidate transfer ban “unconstitutional” on dual grounds, one of which was that it was “not ‘closely drawn to avoid unnecessary abridgment of associational freedoms.’ ” (
A few prior decisions implicitly recognized that power. (See Levy v. Louisiana (1968)
See, e.g., Levy v. Louisiana, supra,
See also Richardson v. Griffin (1972)
U.S. Dept, of Agriculture v. Moreno (1973)
See Gomez v. Perez (1973)
The concurring and dissenting justices accepted the general propriety of judicial extension of statutes that would otherwise be invalid under the equal protection clause. (
On remand, the Missouri and Alabama courts extended their statutes. (See Wengler v. Druggists Mut. Ins. Co. (Mo. 1980)
The court upheld the constitutionality of an amendment to the Social Security law that perpetuated for a five-year grace period the same sex-based classification declared unconstitutional in Califano v. Goldfarb, supra,
The court plainly implied that, if it were faced with the question, it would decline to order extension in the case before it, not because a court lacks general authority to do so, but because Congress had “clearly expressed its preference for nullification, rather than extension, of the pension offset exception in the event it is found invalid.” (
On remand the state court extended the statute. (Davis v. Department of Treasury (1989)
Although some have declined to extend statutes on the ground that on the facts of the case, doing so would frustrate, and not advance, the discernible legislative intent (see, e.g., Kroh v. N.D. Workers Compensation Bureau (N.D. 1988)
A contrary view has occasionally been expressed, but only in dissenting opinions. (See, e.g., Wengler v. Druggists Mut. Ins. Co., supra,
As explained below, California cases as well have acknowledged the propriety of extension to avoid invalidity under equal protection principles. (See post, pp. 641-642, 649-651.)
See, e.g., Orr v. Orr, supra,
See, e.g., Davis v. Aetna Life & Cas. Co. (Tenn. 1980)
See, e.g., Thomas v. Rutledge (1981)
See, e.g., People v. Liberta (1984)
Likewise, the high court earlier approved extension as an alternative to invalidation of a state criminal statute otherwise invalid under the equal protection clause. (Skinner v. Oklahoma, supra,
Insurance Co. of North America v. Russell, supra,
The court has expressly invited reformation by state courts in analogous contexts. See, e.g., Virginia v. American Booksellers Assn. (1988)
Some decisions addressed this latter question directly. In State v. A Motion Picture Entitled “The Bet," supra,
The federal appeals court had declined to so construe the statute. The high court recognized its authority to adopt a construction of the statute different from that of the appeals court, but ultimately “pretermitted” that issue (
A local ordinance broadly imposed a license tax on all gross receipts. We noted, “[t]o allow a city to levy a license tax based upon gross receipts attributable to selling activities outside the city would be an unreasonable discrimination and a denial of equal protection of the law.” (City of Los Angeles v. Belridge Oil, supra,
The Penal Code makes it a crime for anyone to “willfully disturb[]” any lawful meeting. (Pen. Code, § 403.) We found the term overbroad because it would criminalize protected speech under the First Amendment, and in order to preserve the statute, we construed it “to require the following showing to establish its transgression: that the defendant substantially impaired the conduct of the meeting by intentionally committing acts in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known.” (In re Kay, supra,
The Penal Code made it a crime for anyone to “disturb the peace” or “breach the peace.” (Pen. Code, former § 415, repealed by Stats. 1974, ch. 1263, § 1, p. 2742.) We rejected a claim that the terms are overbroad and criminalize protected speech under the First Amendment, by construing the terms “to mean disruption of public order by acts that are themselves violent or tend to incite others to violence.” (In re Bushman, supra,
The Education Code provided for revocation of a teaching license, on a showing of “any act involving moral turpitude.” (Former Ed. Code, § 13129, subd. (e), repealed by Stats. 1976, ch. 1010, § 1, p. 2384.) We found the term overbroad because it implicated protected privacy interests, and in order to preserve the statute, we construed it to “denote immoral or unprofessional conduct or moral turpitude of the teacher which indicates unfitness to teach.” (Morrison v. State Board of Education, supra,
The Penal Code makes it a crime for anyone to engage in “lewd or dissolute conduct in any public place open to the public or exposed to public view.” (Pen. Code, § 647, subd. (a).) We noted the statute would, if interpreted according to its literal terms to apply to live theatrical performances, criminalize protected speech under the First Amendment, and pose a “serious equal protection problem.” (Barrows v. Municipal Court, supra,
In order to avoid constitutional vagueness problems, we construed a local trespassing ordinance that proscribed “offensive personal conduct,” to “coincide with those offenses punishable under Penal Code section 646c (obstruction of a street, sidewalk, or other public area).” (In re Cox, supra,
The Penal Code makes it a crime for anyone who disrupts the orderly operation of a college campus to remain on a campus after being notified that consent to remain has been withdrawn. (Pen. Code, § 626.4.) We found the section overbroad because it would criminalize protected speech under the First Amendment, and in order to preserve the statute, we construed it “to permit exclusion from the campus only of one whose conduct or words are such as to constitute, or incite to, a substantial and material physical disruption incompatible with the peaceful functioning of the academic institution and of those upon its campus.” (Braxton v. Municipal Court, supra,
We construed a local growth control ordinance “to give specific content to terms that might otherwise be unconstitutionally vague.” (
The Penal Code makes it a crime for anyone to “procure[] another person for the purpose of prostitution . . . .” (Pen. Code, § 266i.) We noted the statute would, if interpreted to apply to the hiring of actors to perform in a “nonobscene commercial film,” “rather obviously place a substantial burden on the exercise of protected First Amendment rights.” (People v. Freeman, supra,
In yet another category of cases we have reformed statutory schemes to make them consistent with due process requirements by reading into enactments the right to a hearing. Most recently, for example, in Traverso v. People ex rel. Dept, of Transportation (1993)
Likewise, in the due process hearing cases (ante, fn. 47), we expanded each statute by reading into it a hearing right necessary under the Constitution, but not set out in the law as enacted.
In Arp, supra, 19 Cal.3d at pages 407-408, we cited Edgar M., supra,
Thereafter, the Hayes court wrote: “See Baxstrom v. Herold (1966)
In In re Trummer (1964)
See Mills v. Superior Court (1986)
See Lesher Communications, Inc. v. City of Walnut Creek (1990)
A number of the cases cited by interveners and amicus curiae for respondent are akin to Blair v. Pitchess, supra,
See Solberg v. Superior Court (1977)
In re Waters of Long Valley Creek Stream System (1979)
As explained ante, pages 648-649, Eller, supra,
There are also numerous cases in which the high court has stated it will not, and may not, reform an enactment even to preserve its constitutionality. For example, an oft quoted passage of United States v. Reese (1876) 92 U.S. (2 Otto) 214 [
These and other cases containing the same or similar statements (e.g., Virginia v. American Booksellers Assn., supra,
Reese concerned a criminal prosecution under a federal statute. Two inspectors of a Kentucky municipal election had refused to accept the ballot of “William Gamer, a citizen of the United States of African descent.” (92 U.S. (Otto) at p. 215 [
Contrary to the Reese court’s determination that it lacked authority to “introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only” (
For these reasons we conclude that United States v. Reese, supra, 92 U.S. (Otto) 214, 221 [
Justice Mosk’s concurring opinion asserts rewriting to preserve constitutionality is barred by the separation of powers doctrine unless the enacting body expressly or by implication “specifically authorize^]” such rewriting. (Cone. opn. of Mosk, J., post, at p. 674.) As explained above, the cases establish a somewhat different standard: Courts have declined to rewrite, even to preserve constitutionality, unless they can conclude with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred such a reformed version of the statute to invalidation of the statute.
In view of the prior decisions of this court (cited and described ante, pages 641-653), none of which Justice Mosk claims was incorrectly analyzed or decided, we are inclined to read Justice Mosk’s concurring opinion as simply emphasizing, appropriately in our view, the need for close and careful scrutiny regarding the second part of the traditional test embraced herein, namely, whether the enacting body would have preferred a given reformed construction to invalidation.
As observed ante, pages 652-653, many of the equal protection extension cases effectuate broad legislative policy judgments granting benefits to a named class, while declining to respect other policy judgments improperly limiting those benefits to the named class, and thereby elevate a major legislative policy judgment over a related minor policy judgment. Again, assuming this form of limited judicial policymaking is proper in the equal protection/ underinclusion context, we conclude such judicial conduct is improper outside that context.
Neither petitioners nor intervener on their behalf suggest the inter-candidate transfer ban aspect of section 85304 should be judicially reformed to avoid the overbreadth perceived by
As respondent observes, assuming the term “election cycle” were defined to encompass both the primary and general election for an office, use of that definition would frustrate the apparent legislative purpose of allowing contributors an opportunity to contribute before both the primary and the general elections. (See ante, fn. 8.)
The calculations presented herein are premised on the assumption, implicitly embraced by amicus curiae and interveners for respondent, that the statutes as enacted would have allowed two contribution periods for each two-year race, and four contribution periods for each four-year race, etc. Yet, there are at least three, not two, fiscal years prior to the election for the first term of a two-year office, and there are at least five, and not four, “fiscal years” prior to the election for the first term of a four-year office. Although, as a practical matter, it would seem that only those candidates who were not holders of elective office would benefit from this fact, still it must be recognized that the “theoretical maximum aggregate contribution” amounts discussed herein understate slightly the true theoretical maximum aggregate amounts that would have been permitted in some cases under the statutes as enacted.
For example, under section 85301(a) as enacted, a candidate for an Assembly seat could solicit and accept contributions from an individual totaling $2,000 (i.e., $1,000 per “fiscal year”). Likewise, under the proposed “per election” reformation of section 85301(a), a candidate for an Assembly seat could solicit and accept contributions from an individual totaling $2,000 (i.e., $1,000 for primary, and $1,000 for the general election).
Under section 85301(a) as enacted, a candidate for a Senate seat, or a candidate for a local nonpartisan office (e.g., mayor, council, and supervisor races) could solicit and accept contributions from an individual totaling $4,000 (i.e., $1,000 per “fiscal year”). But under the proposed “per election” reformation of section 85301(a), a candidate for a Senate seat could solicit and accept contributions from an individual totaling only $2,000 (i.e., $1,000 for the primary, and $1,000 for the general election). Similarly, under the proposed “per election” reformation of section 85301(a), a candidate for local nonpartisan office could solicit and accept contributions from an individual totaling only $1,000 “per election,” which would effectively reduce contributions to that amount unless a runoff were required.
Under inoperative section 85300 (proposed by Proposition 68 and approved by electors June 7, 1988)—the analog of section 85301 of Proposition 73—contributions by a person to a candidate for a Senate seat would be limited to $1,000 per primary, general, special, or special runoff election.
In view of respondent’s stated position, we question Justice Baxter’s assertion that “respondent has never suggested that [the “modified election cycle”] approach . . . would be . . . improper.” (Conc. & dis. opn. of Baxter, J., at p. 690.)
At oral argument, petitioners, and to a lesser extent intervener on their behalf, Common Cause, agreed that reformation under Justice Baxter’s approach would be “better than no reformation at all.” Neither, however, endorsed Justice Baxter’s “modified election cycle” approach.
For this reason, and contrary to Justice Baxter’s concurring and dissenting opinion, post, at pages 691-692, Buckley v. Valeo, supra,
Having concluded sections 85301(a) and 85303(a) and (b) may not be reformed, we conclude section 85302 should not be reformed. (See ante, p. 663, and ante, fn. 10.)
Concurrence Opinion
I concur in the judgment. The petition for writ of mandate essentially asks us to. rewrite, in certain requested or suggested ways, the initiative statute approved by the people and commonly referred to as Proposition 73. The court has determined that such relief must be denied.
I write separately to explain why I join in the disposition.
In Nongues v. Douglass (1857)
“The . . . powers of the State reside primarily in the people; and they, by our Constitution, have delegated all their own powers to the three departments—legislative, executive, and judicial—except in those cases where
“The three great departments are essentially different in their constitution, nature, and powers, and in the means provided for each by the Constitution, to enable each to perform its appropriate functions. These three departments are all equally necessary to the very existence of the government.
“The legislative power is the creative element in the government, and was exercised partly by the people in the formation of the Constitution. It is primarily [sz'c] and original, antecedent and fundamental, and must be exercised before the other departments can have anything to do. Its exercise is a condition precedent, and the exercise of the executive and the judicial functions are conditions subsequent. The legislative power makes the laws, and then, after they are so made, the judiciary expounds and the executive executes them.” (Nougues v. Douglass, supra, 7 Cal. at pp. 69-70, italics in original.)
The principal focus of this proceeding is, of course, the judicial power under the California Constitution. The subsidiary object is the legislative power—whether exercised by the Legislature itself or by the people acting through initiative or referendum. When, in “expounding” the law, the courts undertake to construe a statute, they “ask only what the statute means.” (Holmes, Collected Legal Papers (1920) p. 207.) And when they consider that question, they ask only what its words mean. For a statute, as it were, is a complete integration. Within its scope, it is the final and exclusive statement by the legislative body of its intent, superseding all prior and contemporaneous expressions and implications, not only those that are directly contrary but even those that are altogether consistent. Perhaps more accurately, it is the legislative body’s final and exclusive enactment, displacing all terms and conditions of whatever sort that could, would, or might have
Under the California Constitution, therefore, the courts have no general authority by virtue of the judicial power to rewrite a statute, even to salvage its validity. Rewriting would amount to amendment. (See, e.g., Huening v. Eu (1991)
Plainly, if the 7 members of this court had general authority to rewrite a statute—as the dissenters evidently believe in their remarkable, and uncabinable, display of judicial activism—so too would the state’s 88 Court of
With that said, it is plain that, in any given statute, the courts may be specifically authorized by the legislative body to make deletions along and within the measure’s general lines pursuant to an express severability clause (see, e.g., In re Blaney (1947)
Likewise, it seems clear that, in any given statute, the courts may be specifically authorized by the legislative body to make additions, also along and within the measure’s general lines, pursuant to what might be called an express “attachability clause,” or even an implied provision to similar effect. (See Minn. Stat. § 144.343, subd. (6) (1994) [legislative authorization in an abortion notification statute for the courts to add certain “[substitute notification provisions” allowing judicial bypass if, and so long as, the original notification provisions not encompassing judicial bypass are “ever temporarily or permanently restrained or enjoined by judicial order”].) That is the core, and sound, teaching of Justice Harlan’s concurring opinion in Welsh v. United States (1970)
Turning now to Proposition 73, I am convinced that we have no general authority by virtue of our judicial power under the California Constitution to
In conclusion, because I am of the view that we are without authority to alter Proposition 73 in any of the ways requested or suggested, I concur in the judgment.
The California Constitution declares that the “powers of State government are legislative, executive, and judicial” (Cal. Const., art. Ill, § 3); the “legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the
It follows a fortiori that, under the California Constitution, the courts have no general obligation to alter a statute. Certainly, they have not been made subservient to the legislative body, as a valet to his master. They must themselves construe the statute under review. If they find it valid, they must so declare. If they find it invalid, they must so declare. They need not, and indeed must not, alter it in order to spare the legislative body the chore of amendment.
In an article entitled Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation (1979) 28 Clev. St. L.Rev. 301, then Judge, now Justice, Ginsburg seems to agree that the courts do not have general authority to alter a statute. But she accepts some “judicial legislation” as legitimate apparently because she deems it necessary. It is not. Moreover, she rejects what she evidently considers the “ ‘wooden notion that each branch must “be limited to the exercise of the powers appropriate to its own department and no other.” ’ ” (Id. at p. 324.) We may not.
By way of example: assume a statute that requires the filing of certain documents by 5 o’clock. We could reasonably interpret the measure to mean 5 o’clock in the afternoon. We could not, however, change the words “5 o’clock” to “6 o’clock.”
I note in passing that, at one point in his concurring opinion in Welsh, Justice Harlan stated: “Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion. Cf. Skinner v. Oklahoma,
Concurrence Opinion
I join fully in Chief Justice Lucas’s lead opinion. I write separately to emphasize that rewriting of statutes and initiatives to salvage their constitutional validity, while within our authority, is a task to be undertaken sparingly and cautiously. As Justice Mosk points out, and as this court has often recognized, the judicial role in a democratic society is fundamentally to interpret laws, not to write them. The latter power belongs primarily to the people and the political branches of government; the courts should exercise the power only in compelling circumstances, and only where we can be certain that our duty to implement the legislative intent requires us to act. The present case, I believe, is not one in which we can act with the requisite certainty; consequently, respect for the limitations of the judicial role demands we refrain from exercising the extraordinary power to rewrite an unconstitutional law.
I
The considerations of comity and prudence that have governed judicial action in the delicate area of rewriting unconstitutional legislation cannot be reduced to a simple formula. In some circumstances, the nature of the constitutional flaw and the history of the legislation clearly command salvage by rewriting, rather than total invalidation. In other circumstances, reformation is unworkable and unwarranted, and invalidation is the only course the courts may take.
Courts hesitate least to rewrite a law when all that is called for is to “construe” a vague or overbroad law by specifying or narrowing its application. Two justifications are apparent for judicial willingness to impose such a narrowing construction, even if it requires, in effect, insertion of limiting language into a law enacted without such limitation. First, a narrowing reformation decreases rather than increases the number of cases in which the statute will apply. In most circumstances a court can reasonably
Second, that a court faced with an unconstitutionally overbroad statute may limit its scope by a narrowing construction is a well-accepted principle of constitutional review. (See, e.g., United States v. 12 200-Ft. Reels of Film (1973)
If construction to save a vague or overbroad statute is at one end of the reformation continuum, at the other are those cases in which the proposed rewriting involves substitution of a new and substantially different scheme for that created by the legislative body. (See, e.g., Blair v. Pitchess (1971)
When the task of saving a statute from unconstitutionality has involved more than severance of a clause or insertion of narrowing language, courts have properly proceeded with caution. One important consideration is whether the court can be confident it possesses sufficient expertise in the subject matter to draft an enforceable and practical law. Not surprising, therefore, is that the primary example of such redrafting in California jurisprudence, In re Edgar M. (1975)
In some cases—for example, when a statute is extended by eliminating an unconstitutional exception—rewriting an unconstitutional law may require
Thus, the historical commitment to the residual policy has been deemed especially important. If the substance of the law after rewriting is of longstanding and fundamental nature, an inference naturally arises the legislative body would strongly prefer the law to remain in force despite a change in operation, as by extension to some undesired applications. (See Welsh v. United States, supra,
II
The lead opinion demonstrates that neither the reformation proposed by petitioners, nor that devised by Justice Baxter, would effectuate all three of the key policy judgments embodied in Proposition 73’s contribution limits. (Lead opn., ante, at pp. 664-670.) I agree that fact alone is a sufficient reason
Both the proposed reformations would require this court not merely to sever or limit provisions of the initiative, but actually to replace the sections held unconstitutional with substantially different provisions that were never considered by the voters. The unconstitutional provisions lie at the heart of the statutory scheme created by the initiative. We are thus faced not with the task of correcting minor, peripheral flaws to save an otherwise valid statute, but with rewriting the law’s central operational provisions. On the reformation continuum sketched earlier, the proposed repairs fall at the far extreme of practices courts properly seek to avoid; only the most compelling circumstances should move the court to step so far outside its normal role, and even then, only when the court can be confident its actions effectuate the fundamental policy objectives of the legislative body.
In his concurring and dissenting opinion, Justice Baxter emphasizes that the voters who enacted Proposition 73 wanted campaign contribution limits. This court, however, cannot accurately assess the intensity of that residual policy, divorced from any consideration as to the appropriate amounts and timing of the contributions allowed. The voters enacted a scheme quite specific on the amounts and timing of allowable contributions; this court, in my view, has no grounds on which to presume they cared only that limits be imposed, whatever the limits might be. In the absence of any direction in the initiative itself, we cannot be confident the electorate wanted the judiciary to rewrite the central provisions of the law, should those provisions prove invalid.
Were we to undertake the task of reformation, we would have for guidance no historical commitment to contribution limits. Nor can we say invalidation would disrupt an existing operational scheme on which parties not before us are depending. The subject matter, finally, is complex and falls outside the area in which an appellate court can claim special expertise or thorough knowledge. Were we, therefore, to undertake to rewrite Proposition 73 in order to save it, we would be assuming legislative powers, but without the compelling circumstances that have occasionally led courts to do so in the past. I join the majority of my colleagues in declining to make such an unwarranted departure from our normal judicial duties.
Where the legislative scheme involves provision of government benefits, the disruption caused by invalidation of the statute may be the most important consideration. Aware that “[a] judgment invalidating a benefit statute takes something of value from a class not before the court” (Ginsburg, Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation (1979) 23 Clev. St. L.Rev. 301, 321), courts are especially willing to stretch their interpretive powers, or to forthrightly rewrite a law by eliminating an unconstitutional exception, where the alternative is invalidation of an established benefit program. (See, e.g., Califano v. Westcott (1979)
Dissenting Opinion
I concur in the judgment.
I agree with the Chief Justice and Justices Mosk and Werdegar that this court may not issue a writ of mandate commanding
I
On February 10, 1989, the Service Employees International Union (the Union), among others, petitioned this court for a writ of mandate to bar enforcement of Proposition 73, a campaign finance reform initiative that the voters of California had enacted on June 7, 1988, and that had become operative on January 1, 1989. In its petition, the Union named the Fair Political Practices Commission (FPPC) as the respondent; it named Senator Quentin Kopp and Assemblyman Ross Johnson, proponents of Proposition 73, as real parties in interest. The Union alleged that Proposition 73’s limitations on campaign contributions and expenditures violated the First Amendment to the United States Constitution. On March 1, 1989, this court denied the petition summarily (that is, without a written opinion or issuance of an alternative writ), thereby declining to address the constitutionality of the initiative. (Service Employees Inf l Union v. Fair Political Practices Comm., Supreme Ct. Mins., Mar. 1, 1989 [Off. Reps. Adv. Pamp. No. 9 (1989) Mins., p. II].)
The Union then turned to the federal courts. On March 24, 1989, it commenced an action for declaratory and injunctive relief in the United States District Court. (Service Employees Intern. Union, AFL-CIO v. FPPC (E.D.Cal. 1989)
On February 7, 1992, the Ninth Circuit Court of Appeals affirmed the district court’s judgment. (Service Emp. Intern, v. Fair Political Prac. Com’n, supra,
On June 29, 1992, the United States Supreme Court denied certiorari, thereby declining to review the Ninth Circuit’s decision. (California Fair
On March 14, 1994, more than two years after the Ninth Circuit had issued its decision and more than eighteen months after the United States Supreme Court had declined to review that decision, Senator Kopp and Assemblyman Johnson filed with this court their present petition for a writ of mandate. The petition asks this court, essentially, to rewrite Proposition 73 to avoid the constitutional infirmities identified by the federal courts and to order the FPPC to enforce the Proposition 73 as so rewritten. On June 30, 1994, this court issued an alternative writ, thereby agreeing to give the petition full consideration and to decide it by a written opinion.
II
A state court is required to give full faith and credit to a final judgment of a federal court. (Americana Fabrics, Inc. v. L & L Textiles, Inc. (9th Cir. 1985)
Because it is entitled to full faith and credit, “[a] federal judgment ‘has the same effect in the courts of this state as it would have in a federal court.’ ” (Younger v. Jensen (1980)
The doctrine of res judicata includes two distinct types of preclusion: claim preclusion and issue preclusion. (Robi v. Five Platters, Inc. (9th Cir. 1988)
This mandate action presents the same issue—whether Proposition 73 may be reformed to avoid constitutional infirmity—that was presented in the earlier federal action. The parties to be precluded—Senator Kopp and Assemblyman Johnson—were parties to the federal action.
My colleagues do not dispute that the usual requirements for issue preclusion are present; instead, they apply the “public interest” exception to issue and claim preclusion as articulated in decisions of this court. (Lead opn., ante, at p. 621; conc. & dis. opn. of Baxter, J., post, at p. 686.) But when a federal court is exercising federal question jurisdiction, as the federal courts
Federal law does not recognize a broad “public interest” exception to issue preclusion. In Federated Department Stores, Inc. v. Moitie (1981)
Federal courts have construed this statement by the United States Supreme Court to mean that there is no “public interest” or “public policy” exception to res judicata under federal law. (Baptiste v. C.I.R. (8th Cir. 1994)
The public interest in this case supports, not defeats, issue preclusion. There is a strong public interest in the finality of judgments and preventing relitigation. (Federated Department Stores, Inc. v. Moitie, supra, 452 U.S.
Moreover, even under state law the “public interest” exception is invoked only in exceptional circumstances when it may be necessary to relieve a public agency of an erroneous earlier determination of the issue. (Arcadia Unified School Dist. v. State Dept, of Education (1992)
Ill
“The resolution of this dispute does not go to the substantive merits of the controversy, but it goes directly to basic jurisdictional powers of courts of separate sovereignties.” (Del. Valley Citizens’ Council v. Com. of Pa. (3d Cir. 1985)
By the various opinions filed today, this court has decided that it has the power to redetermine an issue finally resolved by this federal judgment— whether Proposition 73 may be reformed to avoid constitutional infirmity— and to issue a writ ordering enforcement of Proposition 73 despite the federal judgment permanently enjoining enforcement of that same law. (Lead opn., ante, at pp. 620-625; conc. & dis. opn. of Baxter, J., post, this page.) Three justices (Justices Arabian, Baxter, and George) would actually issue the writ; three others, although proclaiming that this court has the power to do so, are of the view that the writ should not issue because Proposition 73 is not amenable to judicial reformation (the Chief Justice and Justice Werdegar), or because this court has no power, absent authorization by the Legislature, to reform a legislative act (Justice Mosk). (Lead opn., ante, at pp. 664-670; conc. opn. of Mosk, J., ante, at pp. 671, 674.)
For the reasons explained above, I do not agree that a state court is at liberty to disregard a federal judgment enjoining enforcement of a state law on federal constitutional grounds simply because the state court may disagree with the federal courts’ conclusion that the law is not amenable to reformation. A state court must give full faith and credit to the final judgment of a federal court by precluding parties from relitigating issues that were fully and fairly litigated and necessarily determined in the federal action. I would do so here.
When this court refused to consider the Union’s constitutional challenge to Proposition 73, we were in the process of determining whether Proposition 73 superseded every provision of Proposition 68, which was another campaign financing reform initiative that the voters enacted at the June 1988 election, or only those provisions of Proposition 68 that actually conflicted with Proposition 73. A majority of this court ultimately concluded that Proposition 73 entirely superseded Proposition 68. (Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990)
After the Ninth Circuit Court of Appeals rendered this decision, California Common Cause, among others, filed an original mandamus proceeding in this court, in which it contended that the federal courts’ invalidation of Proposition 73 revived Proposition 68 by-operation of law. (Gerken v. Fair Political Practices Com. (1993)
Because the requirement for issue preclusion are clearly met, I do not address whether the requirements for claim preclusion are also satisfied.
Issue preclusion is not barred by the presence of California Common Cause in this action as an additional party plaintiff. California Common Cause was a party to both Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com., supra,
The Chief Justice’s opinion asserts that state law governs when a state court is considering whether an exception to res judicata or collateral estoppel applies to a federal judgment. (Lead opn., ante, at p. 622, fn. 16.) Not so. As the Restatement Second of Judgments, section 87 states: “Federal law determines the effects under the rules of res judicata of a judgment of a federal court.” (Rest.2d Judgments, § 87, p. 314.)
The Chief Justice’s opinion also maintains that the United States Supreme Court’s decision in Dombrowski v. Pfister (1965)
“The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between State courts and those of the United States, it is something more. It is a principle of right and of law, and therefore, of necessity.” (Covell v. Heyman (1884)
I do not agree with the Chief Justice’s apparent suggestion that the public interest exception to the doctrine of res judicata may be applied whenever a majority of the court decides that further litigation should be permitted. (Lead opn., ante, at pp. 622-623, fn. 16.) Both Arcadia Unified School Dist. v. State Dept, of Education, supra,
Nor do I agree with the Chief Justice that the propriety of the prior decision is irrelevant to the determination of whether the public interest exception should be invoked. That approach would allow the judiciary to relitigate matters already finally determined, without consideration of whether such relitigation is either necessary or appropriate. I would accord more respect to matters that have already been fully and fairly litigated.
Dissenting Opinion
I concur in all aspects of parts III. and IV. of the lead opinion. As the lead opinion persuasively reasons, this court is not barred by principles of res judicata, collateral estoppel, or comity from considering whether the constitutionally flawed provisions of Proposition 73 may be reformed. In addition, the lead opinion concludes correctly that a court is under a duty to reform a statute in order to preserve its constitutionality when it can say with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred the reformed construction to invalidation of the statute.
I respectfully dissent, however, from parts V. and VI. of the lead opinion. The lead opinion fails to recognize that, because it may be extremely
I.
As the lead opinion explains at some length, both the United States Supreme Court and this court have on numerous occasions relied upon various judicial doctrines—including judicial construction of ambiguous statutes in a manner to avoid constitutional questions, the severability doctrine, and judicial reformation—to preserve, to the extent constitutionally possible, legislative measures that otherwise might be invalidated because of constitutional flaws. Judicial reformation of a statute, in a manner that effectuates the intent of the enacting legislative body but eliminates the constitutionally impermissible feature of the statute, accords proper deference to the legislative body’s policy choices and is generally less intrusive upon the legislative domain than the wholesale judicial invalidation of the statute on constitutional grounds, which completely thwarts the accomplishment of the objectives of the legislation.
The foregoing considerations are weighty factors whenever a legislative measure contains a constitutional flaw, but they assume even greater significance when the legislative measure at issue is an initiative measure, enacted by popular vote. When a statute enacted by the Legislature is invalidated, it may be relatively easy for the Legislature to react to the judicial decision, and to enact a new provision that accomplishes the legislative purpose while avoiding the constitutional flaw. When an initiative statute is found to be flawed, however, it may be vastly more difficult and burdensome for the proponents of the statute to undertake the considerable administrative and financial effort to place a new initiative on the ballot in order to cure the constitutional defect. Thus, as a general matter, a court that is concerned
I am not suggesting that efforts to reform would be necessary or even desirable with regard to all initiative measures. Elected lawmakers ordinarily will not have a personal stake in the subject matter of initiatives and will not, in general, be in a position that may be “adversary” to their constituents. Thus, in the case of most initiative measures, if a court invalidates a provision of the initiative entirely, elected lawmakers, appreciating the will of the voters, may themselves respond to the court decision and enact a new legislative provision that effectuates the voters’ intent and cures the constitutional defect.
But I strongly believe that reformation is especially, and perhaps even uniquely, appropriate where, as here, the voters’ interest in a particular reform may be adverse to the interests of the lawmakers they elect. In the case of an initiative, like Proposition 73, that imposes limits on the campaign contributions that elected lawmakers can receive, the self-interest of the lawmakers makes it less likely that they will react to a court decision invalidating the initiative’s contribution limits by enacting new contribution limits that effectuate the voters’ goals but eliminate the constitutional flaw.
For the foregoing reasons, I believe the context in which this case arises presents the most compelling circumstance for this court to undertake the effort to reform, rather than invalidate entirely, the constitutionally flawed contribution limits of Proposition 73. Indeed, as a court we are obligated to jealously guard the precious initiative power, and to resolve any reasonable doubts in favor of its exercise. (Raven v. Deukmejian (1990)
II.
Using the lead opinion’s standard, it is quite possible to reform Proposition 73’s flawed provisions “in a manner that closely effectuates policy judgments clearly articulated by [the electorate].” (See lead opn., ante, at p. 661.) As I shall explain, the campaign contribution provisions may be reformed to closely replicate the fundraising limits as enacted, while eliminating the defective fiscal year restriction.. Although the modest reformation I propose does not (and by logic, cannot) mirror exactly the existing flawed
To determine whether Proposition 73’s contribution limits are capable of reformation, we must first ascertain what the voters sought to accomplish in their passage.
Prior to 1988, California law generally did not limit the amount of money that an individual could give in political campaign contributions to candidates for state elective office. Proposition 73, which appeared on the June 1988 ballot, sought to reform the financing of statewide and local political campaigns. In the ballot arguments, the proponents of the initiative expressed their concern that “ [candidates and officeholders can be unduly influenced by special interest groups that donate large amounts of money,” informing the voters that “[contributions of $10,000, $20,000 or $30,000 [were] routine” and that “$100,000 contributions [were] becoming commonplace.” (Ballot Pamp., Proposed Amends, with arguments to voters, Primary Elec. (June 7, 1988) argument in favor of Prop. 73, p. 34.) The proponents urged passage of Proposition 73 because it would, among other things, “place a reasonable contribution limit on how much any one donor can give to a candidate.” (Ibid.)
As passed by the voters, Proposition 73 limited campaign contributions from a “person” to a candidate to no more than $1,000 per fiscal year (Gov. Code, § 85301, subd. (a)),
After the passage of Proposition 73, a federal appellate court upheld an injunction against enforcement of the contribution limits on the basis that the
The question for us, then, is whether it is possible to reform Proposition 73’s contribution limits in a manner that closely effectuates the intent of the voters while eliminating the constitutionally impermissible fiscal year feature and its discriminatory effects. The obvious answer is yes.
The provisions restricting campaign contributions can and should be reformed on an “election cycle” basis to limit campaign contributions and loans to candidates to no more than $1,000 (for § 85301, subd. (a)), $2,500 (for § 85303, subd. (a)), and $5,000 (for § 85303, subd. (b)), multiplied by the number of years of the term of office sought by the candidate, and in partisan races to further incorporate a “per election” pacing mechanism so that no more than one-half the total allowable amount may be contributed prior to the primary election and no more than one-half of the total allowable amount may be contributed between the primary election and the general election.
Petitioner Kopp and intervener Common Cause, both strongly supporting some form of reformation, stated at oral argument they agree that the modified election cycle approach would be more faithful to the voters’ intent than invalidating the flawed contribution limits in their entirety. Taking a slightly different position, however, petitioner and intervener urge adoption of a straight $l,000/$2,500/$5,000 per election limit, which represents a more stringent campaign finance reform than the modified election cycle proposal, or than Proposition 73 as enacted, or even than Proposition 68 (the competing reform measure which had been sponsored by intervener but had lost out to Proposition 73). (See lead opn., ante, at pp. 664-665.) Even though I agree with petitioner and intervener that either the straight per election reformation or the modified election cycle reformation would more closely effectuate the voters’ intent than outright invalidation, the more prudent course, I believe, would be to adopt the less restrictive modified election cycle approach since contribution limits impinge on fundamental First Amendment interests. (See Buckley v. Valeo, supra, 424 U.S. at pp. 21-23 [46 L.Ed.2d at pp. 689-690].) In my view, it should not be assumed the voters would prefer that their rights of political expression and association be limited more restrictively than either of the reform initiatives originally presented to them, even though per election contribution limits of $1,000, $2,500, and $5,000 would likely satisfy most of the voters and are probably constitutional. (See id. at pp. 24-29 [46 L.Ed.2d at pp. 690-694].)
Like petitioner Kopp and intervener Common Cause, respondent Fair Political Practices Commission (FPPC) also agrees that the voters clearly wanted contribution limits. Furthermore, respondent has never suggested that an election cycle approach, which seeks to preserve total campaign contributions in the amounts allowed under Proposition 73, would be either improper or too difficult to administer. Significantly, respondent represented to this court at oral argument that: (1) respondent did not care whether a per election or an election cycle approach is ultimately used in the event the contribution limits are reformed; and (2) respondent could certainly administer and enforce either approach effectively. Given these express representations and assurances, it is difficult to comprehend why the lead opinion relies upon respondent’s position as a basis for denying reformation and frustrating the voters’ will.
Finally, as the lead opinion points out, the opponents of reformation— intervener California Legislature and amicus curiae California Democratic
If anything, the opponents’ position supports adoption of the modified election cycle proposal described above. By incorporating both of the stated necessary objectives, such an approach steadfastly adheres to the fundamental policy judgments reflected in the original statutes. No extensive rewriting or substitution of policy judgments has been threatened simply because the proposed reformation substitutes a constitutionally valid pacer in place of the flawed one, or because the reformation would allow, in some fiscal years, contributions to candidates for four-year offices that exceed the original $l,000/$2,500/$5,000 limits. (There is no question that, under the modified election cycle approach, contribution limits to candidates for two-year offices would effectively match the original limits on an aggregate basis and for each fiscal year.) Rather, the modification of the amount and timing of contributions for four-year offices merely reflect adjustments that are necessary to preserve intact the total aggregate contribution amounts contemplated under Proposition 73 while putting challengers and incumbents on equal footing in attaining those amounts.
In Buckley v. Valeo, supra,
By construing (and thus effectively reforming) the statutory language in this fashion, the high court in Buckley v. Valeo, supra,
III.
In 1988, the people expressed an unmistakable desire for Proposition 73’s electoral reforms. For the reasons set forth above, I believe a reformation based upon the modified election cycle limits described above would provide a disposition of this case which, at once, would: (1) effectuate the intent of the electorate to enact meaningful campaign contribution limits; (2) eliminate the constitutional flaw identified by the federal courts; and (3) preserve the right of individuals and parties to contribute, and the ability of
Arabian, J., and George, J., concurred.
Unless otherwise indicated, all further statutory references are to the Government Code.
As the United States Supreme Court recognized in its landmark decision upholding federal campaign contribution limits, “[m]aking a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals.” (Buckley v. Valeo (1976)
According to findings by the district court, “ ‘[m]ost challengers do not decide to run until relatively late in the [election] cycle because the prospects for success, which depend on national or state trends and information about the incumbent, cannot be assessed years in advance of the election.’ ” (Service Emp. Intern, v. Fair Political Prac. Com’n, supra,
Under this reformation, for example, a “person” could contribute a maximum aggregate amount of $4,000 to any candidate running for a Senate or gubernatorial office, but could give no more than $2,000 of that amount for each primary and each general election. In addition, a “person” could contribute a maximum aggregate amount of $2,000 to any candidate running
The opponents’ objections to the straight $1,000/$2,500/$5,000 per election limits advocated by petitioner Kopp and intervener Common Cause present a more sympathetic argument. After all, such limits would permit less in aggregate contribution amounts per election cycle than what intervener had hoped to accomplish with rival measure Proposition 68 and its public funding mechanism.
The lead opinion criticizes the modified election cycle proposal as providing no mechanism to regulate the pace of contributions for nonpartisan elections (e.g., all local elections). However, local legislators and electorates remain free under another provision of Proposition 73 to enact stricter limits for local elections (§ 85101), and to thus “fill in the gaps” as desired. As in fact indicated by ordinances filed with respondent FPPC, a total of 67 California cities and counties thus far have enacted their own local campaign contribution limits. Given the power and apparent willingness of local governments to enact their own stricter contributions limits, I do not believe that absence of a pacing mechanism for nonpartisan elections reasonably can be found to defeat the electorate’s intent.