Kopp v. Fair Political Practices Commission

S038571.Nov. [No. 1995.] al., Petitioners;

QUENTIN et KOPP Intervener, CAUSE,

COMMON COMMISSION, FAIR POLITICAL PRACTICES Respondent; al., CALIFORNIA et LEGISLATURE Interveners.

Counsel Johnson, Franco, Ross & Quentin Di Thomas M. Di Franco Kopp L. for Petitioners. Kopp

Jonathan M. A. on Trevor Grimm as Amici Curiae behalf of Coupal Petitioners. Olson, Woocher, Tolies & &

Munger, S. Bradley Strumwasser Phillips, Woocher, Fredric D. Michael J. Levine for Strumwasser H. Raleigh Intervener on behalf of Petitioners. Churchwell,

Steven G. Scott Hallabrin and Ravi Mehta for Respondent. Remcho, Purcell, Remcho, Johansen, & Johansen Robin Julie B. M. Joseph Monrad, C. Randolph, S. and Karen A. Getman for Philip Wendy Strimling Interveners behalf of Respondents. Fishbum,

Olson, Lance H. Waters & Olson Hagel, Fong, Leidigh, Amici Curiae. Waters as George

Opinion

LUCAS, C. J. Summary

I. Introduction the voters enacted which was to reform Proposition designed Code, (See of statewide and local Gov. financing political campaigns. 82041.5, 85100-85400, 89001.)1 Five of that measure are at provisions §§ (a) (hereafter issue in this Section subdivision litigation: section $1,000 year, 85301(a)) limits contributions a to a per by “person” fiscal candidate or to committees controlled the candidate. Section 85302 by $2,500 year, contributions limits to a to a per by “person” “political fiscal committee, committee, broad based or Section political political party.”3 $2,500 (a) (hereafter subdivision section 85303(a)) limits to per fiscal year, contributions committee” by “political “candidate or com any mittee controlled that (b) (hereafter candidate.” Subdivision by section 85303(b)) $5,000 of the same section limits to year, contributions per fiscal a “broad by based committee political or to a “candidate or political party” committee any controlled that candidate.”4 by section 85304 bans Finally, statutory 1All further references are to this code unless otherwise indicated. “(a) make, 2That section reads in full as person follows: No and no shall candidate for office, treasurer, campaign elective or accept any shall solicit or contribution or loan which candidate, would cause the total by amount contributed or person including loaned to that candidate, contributions or loans to all committees controlled to exceed one thousand ($1,000) any (b) dollars year. provisions fiscal apply of this section shall [<J] not to a candidate’s contribution of personal his or her campaign funds to his or her own contribution account.” 3That committee, section reads in full person as follows: “No political shall make and no committee, political broad based political or party accept, any shall or solicit contribution or person loan from a which would cause the person total amount contributed or loaned committee, political committee, to the same political broad based political party to exceed ($2,500) two thousand five hundred any year dollars fiscal to make contributions to candidates for elective office.” “(a) make, 4Section 85303 reads in full political as follows: No committee shall and no campaign candidate or treasurer accept, any shall solicit or contribution or loan which would cause the total amount contributed or loaned that committee to that candidate for elective any office or by committee controlled that candidate to exceed two thousand hundred five ($2,500) [^Q(b) dollars any year. fiscal No political political broad based committee or party shall make campaign and no candidate or accept, any treasurer shall solicit or contri bution or loan which would cause the total amount contributed or loaned that committee or political party to any that candidate or committee controlled candidate to exceed five transfer own of contributions between candidate’s committees and between .5 candidates

In in a suit in in the which petitioners litigation were present allowed to intervene on behalf of the herein defendant Fair (respondent Commission), Political Practices district the federal court held “fiscal unconstitutional, measure sections 85301-85303 and year” enjoined en- (Service forcement of those and section sections 85304. v. Fair Employees (E.D.Cal. 1990) (Service I).) Political Practices Employees F.Supp. States United Court of for Ninth affirmed Appeals Circuit Intern, (Service district court Political judgment Fair Prac. Emp. (9th 1992) Com’n Cir. (Service II)), F.2d 1312 Employees the high court denied certiorari review. U.S. S.Ct. 3056, 3057].) Const., VI, (see 10;

In original this Cal. art. Cal. proceeding Rules of § Court, 56(a)) Quentin rule Senator brought by petitioners State Kopp Johnson, Ross we issued Assemblyman cosponsors Proposition an alternative writ of to mandate Fair Political Practices Commis- respondent sion it to directing show writ of should why cause mandate not peremptory issue enforce ordering 85301-85304. filed respondent sections Respondent an answer a neutral on We taking the issue. motions of position granted Common on Cause intervene behalf of California petitioners, and four Legislature intervene behalf of legislators6 respondent. addition we amicus curiae briefs other accepted from interested entities and legislators.7

The issue is one of law: state enforcement of the assuming challenged Constitution, so, sections as enacted would violate federal and if may, should, the statutes in a manner judicially that avoids fiscal reformed year measure? ($5,000) (c) any year. Nothing thousand Chapter dollars fiscal shall this limit a [QQ person’s ability provide or support political financial other one or more committees or broad political based provided support purposes making committees is used for other than directly contributions to candidates for elective office.” 5That section reads in full as follows: “No for elective candidate office committee controlled any that candidate or shall candidates elective office transfer contribution to any other candidate for elective office. Transfers of funds between or their candidates controlled are prohibited.” committees Brown, Jr., legislator Assemblyman 6The interveners are L. Willie and Senators Bill Lockyer, Ayala, Ruben S. and Nicholas C. Petris. 7The Taxpayers Assembly Howard Jarvis Association 31 members the California are amici petitioners. curiae on behalf of Party The California Democratic amicus curiae on respondent. behalf of below, interveners on behalf of by respon- we claims reject As explained consid- comity or considerations of bar the of res judicata dent that doctrine the Nor does the federal court’s appeals judgment of issue raised. eration enforcement of sec- the district court’s injunction against federal affirming this of reformation by render those sections incapable tions this court in litigation. to rewrite a statute view that a court lacks authority

We also the reject or the of separation powers its that constitutionality order preserve doctrine, and judicial in the power which vests legislative power Legislature id., VI, Const., IV, 1; (Cal. 1), art. courts art. invariably precludes in the § § the of this court and Under established decisions rewriting. such judicial Court, circum appropriate United States a court reviewing may, Supreme doctrine, stances, a reform and with the of consistently separation powers declar in lieu statute to conform it to constitutional requirements simply unenforceable, The guiding it unconstitutional and principle ing here, electorate’s) (or, as intent: consistency with the Legislature’s can if it court reform a statute constitutional may satisfy requirements in a with that reform (i) conclude confidence it is statute possible articulated clearly manner effectuates closely judgments policy (ii) the would have such body preferred and enacting body, enacting conclude, invalidation the statute. We reformed version of the statute to test, however, and, under not section 85304 this we should reform (b). 85301(a), 85303(a) or and not reform sections trans- We will not the “inter-candidate” of section 85304’s reform aspect found fer ban because the federal that section unconstitutional appeals First and to reformation on Amendment overbreadth unrelated grounds 85303(a) (b), and 85301(a) the fiscal and year measures sections herein, its order our judgment hence in this will not regard implicated by whether or not we reform latter two sections. 85303(a) and 85301(a) (b)—each will we section

Nor reform section candidates—because, illus- which contributions to individual regulates on their and intervener trated by starkly divergent petitioners positions behalf, hand, on one Baxter’s concurring and the Justice justices joining hand, in a cannot be reformed dissenting other statutes opinion, articulated by fashion that judgments clearly effectuates closely policy electorate. election” advocated because Specifically, “per approach than the Cause less funding Common would allow candidates petitioners “modified election cycle” electorate and because the so-called contemplated, Justice concurring dissenting opinion reformation advocated Baxter’s (and would allow more than the electorate planned would candidates funds remove the regulation offices), of contributions for any pace nonpartisan neither reformation would effectuate closely ex- policy judgments clearly electorate, the and hence neither pressed by reformation is permissible. reasons, for related we will not reform Finally, section which contributions to regulates committees or political parties. Background: Litigation Concerning Proposition

II. I, In Service Employees the federal district court F.Supp. to, alia, First, considered inter four sections of the challenges 73. Proposition the measure’s three plaintiffs challenged “contribution limitations” provi- which, above, 85301(a) sions: 85303(a) (b), Sections as noted the regulate maximum dollar amount of contributions to candidates “in any 85302, which, above, fiscal and section year,” as noted the maxi- regulates mum dollar amount of contributions to “in political committees parties addition, fiscal any year.”8 on measure’s ban plaintiffs challenged transfer of (the contributions between a candidate’s own committees “intra- ban”) (the candidate transfer and between candidates “inter-candidate trans- ban”) 85304). fer (§

The federal district court found the fiscal of the three year provisions contribution limitation 85301-85303) sections (§§ unconstitutional because would have the effect they in favor of discriminating incumbents. Relying trial, on expert testimony at the court noted that presented incumbents to solicit typically begin contributions each of the campaign during years matter, but that incumbency, (and, do not as a challengers generally practical so, cannot) incumbents, do because unlike do not decide to run they typically for office in advance years 588.) of an election. at As a F.Supp. p. result, found, the district court a “fiscal measure for contribution year” limitations would tend to favor incumbents over and it con challengers,9 cluded this treatment violated the First and Fourteenth disparate Amend ments to the federal (Id. Constitution. reached this Having year” covering period “July 8The term “fiscal is defined through between June 30.” (a).) (§ subd. Because at Proposition primary the time 73 was enacted all California June, year elections were held in permitted gave fiscal scheme a contributor who election, candidate the maximum allowable before primary to make another maximum I, Employees (See Service primary general contribution between the election and election. 589; Code, F.Supp. [moving primary see also Elec. California some § March].) elections from June to 85301(a) example 9An point: illustrates the federal district court’s would allow an Section $1,000 individual, accept up incumbent per year effectively allowing fiscal from an thus $4,000 $1,000 (i.e., four-year an incumbent to a accept term to from an individual contributor hand, year) per during fiscal challenger, although the term of office. A other $4,000 theoretically (or 62) post, slightly allowed to solicit that same more—see fn. less, i.e., during period, the same practice soliciting substantially would in be restricted to challenges additional to address conclusion, it unnecessary court found (Ibid.) plaintiffs. statutes raised to those an issue turned to the court constitutional issue federal

After this resolving “fiscal i.e., year” provision invalid law, constitutionally whether the state 85301-85303) be severed might (§§ sections contribution limitation that 590.) Proposi The court noted (747 at p. sections. F.Supp. from those in clause, decision and it cited our a severance tion 73 contained Calfarm (1989) 48 Cal.3d Deukmejian Co. v. Ins. 22), which we in expressly at fn. (see F.Supp. p. P.2d 1247] “ for sustaining calls ‘normally a clause of such recognized presence ” Cal.3d at p. (Calfarm, supra, . . . the enactment valid part concluded, however, that the summarily The federal district limitations contribution from the could not be severed year fiscal provisions under state themselves, might, whether the provisions it did not consider and measure. law, fiscal year to avoid the unconstitutional reformed be judicially 85303 violate 85301 through court found sections Accordingly, 590.)10 (747 at F.Supp. federal Constitution. It found

Next, transfer bans. addressed 85304’s the federal district court limitation, spending to be an unconstitutional the intra-candidate transfer ban I, (See Service Employees its enforcement. and enjoined permanently (1976) 424 U.S. 580, 591-594; v. Valeo Buckley see generally, 747 F.Supp. 659, 707-710, opposed S.Ct. [spending, 54-59 [46 if the candidate limitations, only constitutionally are permissible contribution at 85304 is not issue them].) of section to be bound This aspect agrees challenge the plaintiffs’ the court addressed this proceeding. Finally, contributions, i.e., “trans- transfers of section 85304’s ban on inter-candidate this court held aspect candidates.” The district fers of funds between governmen- that no legitimate 85304 unconstitutional on ground section to contribute of a candidate the burden on the right tal interest justified election, likely $1,000 restrict the which would year immediately preceding the in each fiscal on, alia, began $2,000, to run and he or she decided challenger depending, inter when to about accepting contributions. above, injunction, and its court included section 10Asnoted the federal district judgment. As intervener on for the Ninth Circuit affirmed Appeals United States Court of concedes, enjoined section the courts it is reasonable to assume petitioners impliedly behalf of on contributions the limitations on their determination that unless implicit 85302 based enforceable, 85303(a) (b) section 85301(a) are candidates set out in sections be unenforce parties, would itself committees and regulates political which contributions to that, practical operation, (Alternatively, might impliedly have determined able. the courts same indirectly produce the year” regulation would fundraising under section 85302’s “fiscal 85303(a) 85301(a) against challenger sections candidates” as would “discrimination incumbents, to solicit “section (b), challengers, positioned better than would because 85303(a) funds under section part receive all or of those 85302 contributions” and thereafter (b).) candidate. The court noted that the that the another defendants “maintain transfer ban is a device to those who desire to avoid the simply prevent contribution limits from so another doing simple using expedient 593), candidate as conduit for the contribution” but F.Supp. reasoned that because contribution limits were themselves constitution- invalid, ban, the inter-candidate transfer “to the extent it is ally premised limitations, the need to subversion of the fiscal must also fail.” year prevent (Ibid., omitted.) fn. The court thus enforcement of the permanently enjoined contribution limitation and the ban (§§85301-85303) transfer provisions I, 80304). (Service 593.)11 (§ provision Employees F.Supp. I, A month after the federal district court’s decision in Service Employees we held that over an alter- supra, 73 Proposition prevailed Proposition native reform measure that had a lesser vote at campaign garnered majority the 1988 Election. to Limit v. Fair Primary (Taxpayers Campaign Spending 787, Pol. Practices Com. 51 Cal.3d 744 P.2d 799 Thereafter, 1220].) the United States Court of for the Ninth Circuit Appeals I, affirmed the of the in district court Service judgment Employees supra, II, (Service 1312.) F.2d Employees supra, 955

The federal in court that the fiscal measure appeals agreed year employed sections 85301 85303 would have the effect of in through discriminating incumbents, favor of and it found a violation of the Amendment First because the state failed to show that “the discrimination itself is necessary II, (Service serve substantial interest.” 955 governmental Employees 1320.) F.2d at The federal court also concluded that the “fiscal appeals year feature” of sections 85301-85303 rendered them infirm constitutionally and not severance or reformation. The court salvageable by reasoned: [i.e., have us no reason to believe that ‘the given legislation “[Plaintiffs] sections would have been enacted if it had not included the 85301-85303] Babylon, unconstitutional National Co. v. Town provision[].’ Advertising Jackson, (2d [1990]) F.2d U.S. 900 557 Cir. United States v. 390 (citing cert, (1968)), 585 n. 88 S.Ct. 1218 n. 20 L.Ed.2d 138 denied, (1990). U.S. 852 111 the district 498 S.Ct. 112 L.Ed.2d 112 As statute, out, court were we from the to strike the word ‘fiscal’ pointed simply basis, contribution limits would still be measured on an annual raising 73, i.e., challenged “carryover” 11The plaintiffs provision Proposition one additional restriction, prohibits January expenditure campaign prior which funds raised court, 85306). (§ summary provision partial judgment, The district on motion for held that limitation, (See expenditure permanently enjoined be an unconstitutional its enforcement. Union, (E.D.Cal. 1989) 1172.) Employees F.Supp. Service Intern. AFL-CIO v. FPP II, supra, appellate judgment Employees federal aspect court affirmed that Service cause, page subject to show and is not 955 F.2d at 1323. Section 85306 was not to our order proceeding. at issue in this Were we to rewrite the at 590. F.Supp. of discrimination. problems same basis, at a loss we would be election cycle limit an contributions statute short, should be. of the limitations what the dollar amounts to know ‘a that is it statute, substantially, practice rewrite we would have to save Thornburgh v. American (citing F.2d p. 557] disfavored.’ decidedly 747, 764-765, 106 S.Ct. & U.S. Gynecologists, Obstetricians College of II, 2180-81, (Service (1986)).” Employees L.Ed.2d 779 1321.)12 at p. F.2d 85304’s two transfer addressed section

The federal court then appeals of the intra-candi- court’s invalidation It affirmed the federal district bans. above, ban, and, is not of section 85304 transfer as noted aspect date af- the federal litigation. Finally, appeals implicated present enforcement injunction against firmed the district court’s permanent It the defend- acknowledged transfer ban. first section 85304’s inter-candidate circumvention claim ban was order to necessary prevent ants’ that the court, concluded, that the as had the district the contribution but regulations, limits.” absence of valid contribution ban “cannot serve this in the purpose It defendants’ rejected F.2d then addressed ban, “the interest it state’s alternative served justification namely by ‘political power of corruption preventing corruption appearance ” an (Id. 1323.) The we to be brokers.’ at court held: “Even if assume this p. interest, to avoid unnecessary state the ban is not drawn ‘closely important Valeo, 1,] of Buckley supra, freedoms.’ abridgment associational [v. 659, not from 25 L.Ed.2d stems corruption potential [46 691]. at se contributions. Id. contributions but from large campaign per campaign 693], L.Ed.2d ban small 28 at The inter-candidate transfer prohibits p. [46 another contributions. large contributions from one candidate to as well hold, therefore, We ban is unconstitutional inter-candidate transfer it 424 because fails the test used in U.S. at 29 ‘rigorous’ Buckley, [46 II, 1323.) (Service F.2d at 955 pp. Employees supra, 693-694].” (1993) 6. We in v. Fair Com. held Gerken Political Practices subsequently 449, 707 (Gerken), Cal.4th 863 P.2d that Proposition Cal.Rptr.2d II, was not Service 73 “invalidated” the federal litigation Employees which, declined to revive we explained, thus Proposition remained Cal.4th at “inoperative.” pp. Gerken, (see

Our three id. at fn. 6 Cal.4th 707 opinions Lucas, Baxter, (lead J.); (conc. J.); and id. 6 C. id. at 721 of opn. by opn. Arabian, (dis. J.)) fn. of that the assumption 3 observed opn. court—i.e., underlying some of of federal reasoning appeals cases, 12Regarding post, the three cited see footnote 57.

contribution limitation sections could not reformed properly judicially conform with constitutional in fact principles—was an untested of question state, federal, and not law. As we recognized construction long ago, law, of a state statute is a matter of state and an purely erroneous construc tion a federal court does not a state court preclude from later rejecting (See, federal court’s conclusion. City (1919) Oakland v. Buteau e.g., of 170]; Cal. P. Bank etc. Italy Assn. v. Bentley 217 Cal. 940].) Nevertheless, P.2d interveners for respondent assert we are from even whether to precluded reform the statutes at considering issue in this writ Before proceeding. to the reformation proceeding we question, address these issues. preclusion May

III. Whether We Consider Issues Raised in This Writ Petition

A. Res judicata!collateral estoppel

“The doctrine of res judicata or their from precludes parties privies relitigating cause of action that has been determined a court finally (Bernhard v. Bank competent jurisdiction.” America Cal.2d 892].) P.2d Interveners on behalf of note that respondent correctly the federal district and courts are “courts of appellate competent jurisdic tion.” reason They therefrom that the final federal judgment appeals against who petitioners, the Service appeared Employees defendant, litigation as interveners on behalf this court from precludes considering whether the unconstitutional of sections 85301 aspects through below, bemay reformed under law. state As explained disagree.13

State courts “are the (Moore law.” principal expositors state 415, (1979) Sims 994, 1007, 442 U.S. 2371].) L.Ed.2d 429 99 S.Ct. [60 Whether a state statute be reformed or in may construed a manner that state, federal, its preserves is a constitutionality of and not law.14 question Indeed, observed, as the court high has often federal courts “lack jurisdiction authoritatively (United construe state States v. legislation” Thirty-Seven 13Intervener on petitioners suggests behalf of present litigation poses the an issue of (issue (claim estoppel (See collateral preclusion), judicata not res preclusion). v. Lesher Clark (1956) 874, 46 Cal.2d [describing aspect 880 P.2d estoppel [299 collateral of res 865] judicata].) because, below, We need not question resolve this explained characterization as litigation neither doctrine bars the here. observed, 14As Supreme the Ohio sovereignty unquestionably Court has a state’s “is because, errs, implicated when the federal court construes state law” if the federal court “it law, applies law other than Ohio in derogation right prescribe the state’s a ‘rule of ” (Scott Co., 1077, (1991) decision.’ v. Bank One Trust N.A. 62 Ohio St.3d N.E.2d 39 [577 1080].) reformation, litigation law, In present, such concerning as of important under state statutes, and prominent state sovereignty heightened. that interest is

621 822, 830, 363, 91 S.Ct. L.Ed.2d (1971) U.S. Photographs [28 reason, are reluctant federal courts Photographs)), (Thirty-Seven even when constitutionally “rewrite” statutes to preserve to reform or state if enacted by statute otherwise reform or rewrite the court would discussion, 629-631; see also Dombrowski (Ibid.; see post, Congress. 31-32, 22, S.Ct. L.Ed.2d v. 380 U.S. 491-492 Pfister federal invalidated state statute court reform previously 1116] [state Nevertheless, the United States constitutional grounds].) court federal observed when confronted recently for the Sixth Circuit Court of Appeals divine, of a court is the role federal with a state law reformation question, can, would rule on question how the court of last resort as best it state (6th 1991) F.2d (Eubanks v. Cir. Wilkinson statutory reformation. considerably federal courts are 1122.)15 note that in most (We jurisdictions, a to the state’s such ability certify question assisted in this task however, California, the few in country— is one of states court. highest no for federal Circuit—that has and the one the Ninth only procedure court.) law of state to the state’s certify highest courts to questions a federal their that because suggest Petitioners and intervener on behalf law (Moore to construe reform state authority authoritatively lacks Sims, 1006-1008]; Thirty- L.Ed.2d 442 U.S. 829-830]), Seven Photographs, can bar a state court of res or collateral never judicata principles estoppel been resolved by from cause action has entertaining same which, turn, determination federal decision rested on the federal court’s that it reform its constitu should not construe or a state statute to preserve Instead, we that assuming We decline so hold. conclude tionality. of res or collateral would otherwise principles judicata estoppel apply, interest” should entertain and under the “public resolve present litigation to those doctrines. exception Cal.3d Sacramento v. State City of California 522], issue of relitigate 785 P.2d we allowed the state to law to include

whether insurance extension the state’s unemployment We reimbursable state mandate. state and local constituted a governments that it noted the earlier litigation that the state was the losing party “Thus, strict was affected the earlier only entity judgment. legally would foreclose reexamination any collateral application estoppel part statute unconstitu 15There the court said: “When a federal court declares of a state tional, decide the remedial authority Supremacy it under the of the Clause. order to acts limiting language preserve the supply issue us—whether court should before federal statute, usually made the state constitutionality making policy of a state thus choices legislature—we policy factors is the must take account a number of factors. One of those into 1122.) at of . . F.2d respecting revision statutes. .” [state] [state] bound, of The that case. state would remain and no other holding person (Id. would have occasion to at We ob- challenge precedent.” “ served, however, that ‘when the issue is a of law rather than of question fact, the determination is not conclusive either if would result prior injustice interest not be public requires relitigation [Cita- if foreclosed. ” added; (Ibid., v. Mather (1948) italics see also 32 Cal.2d tions.]’ Greenfield 23, 35 P.2d interest to res [recognizing public exception judicata].) 1] us, that rule to the facts before we concluded: “Yet the conse-

Applying of error transcend those which quences any would to mere apply private If the result of earlier but parties. litigation] wrong unimpeachable, [the statewide will suffer taxpayers the state’s unjustly consequences hand, to fund state On the if the continuing obligation other [the mandate]. state fails to the funds to meet and law appropriate this obligation, [the insurance extending unemployment local requirements governments] [citations], cannot be enforced failure to with federal resulting comply law could cost California Sacramento v. State (City of millions.” employers 64-65, omitted; accord, California, Arcadia 50 Cal.3d at fn. pp. School Dist. 251, State Education (1992) Dept, Cal.4th Unified 545, 825 P.2d interest Cal.Rptr.2d [public exception applied 438] to allow of whether school districts for school relitigation may charge the same we conclude a matter transportation].) By reasoning, this is foreclosed, which the interest not be and public requires relitigation hence the claim that the doctrines of res or collateral reject judicata estoppel bar consideration of the state law issue in this litigation.16 federal, state, 16Justice determining Kennard asserts we are bound and not law when (Cone. exception judicata whether an estoppel applies. to the doctrines of res or collateral & Kennard, J., 682-683.) opn. post, concurring dis. proposition For this and 252, (1994) dissenting opinion (Hagen cites two cases v. Utah 510 U.S. L.Ed.2d 399 263-264, 114 S.Ct. and Martin v. Martin Cal.3d 662]) Judgments 470 P.2d and the Restatement Second of section none of i.e., which question posed, applied by addresses the the law court when to be a state considering exception judicata estoppel following a claimed to res or collateral a federal court time, judgment. concurring dissenting At the opinion plainly same and misreads Dom- which, Pfister, 31-32], browski v. as noted 491-492 [14 above, high explicitly recognized enjoined by party that a a federal court from enforcing unconstitutionally permitted an overbroad seek state statute would be thereafter to narrowing and obtain a state court Clearly, reformation or of that same statute. Dombrowski v. Pfister, supra, concurring dissenting conflicts with the opinion’s unsupported assertion precluded by considering that we are petition. federal law from the issues raised in this concurring dissenting opinion Justice Kennard’s that “even under state law also asserts ‘public exception only interest’ is invoked exceptional circumstances when it necessary (Post, public agency relieve an erroneous earlier determination the issue." added.) concurring dissenting opinion italics concludes that because three erroneous, justices “public of this court find the federal courts’ determinations were not (Ibid.) exception dissenting apply. concurring opinion interest” cannot But the misstates statutory provisions invalid” “constitutionally B. of Reformation that when the for assert In a related interveners argument, respondent unconstitutional, those statutes sections 85301-85304 federal courts declared exist, because there is be reformed judicially and hence cannot ceased that an the authority proposition left cite They reform. nothing duties; law; it no it no invalidated statute “is not a it confers rights; imposes office; is, as it in legal contemplation, it creates no affords no protection; (Norton Shelby County v. it had never been though passed.” inoperative (Norton)-, 178, 186, 6 S.Ct. (1886) 118 U.S. L.Ed. 1121] 672, 676 Reclamation District Court accord, v. 171 Cal. Superior District).) to that (Reclamation “numerous exceptions P. concede They rule “the text of an unconstitutional statute the that principle”—including it to the constitutional repair can be rendered legally operative by amending Sutherland, (5th 1994) ed. Limitations on Statutory defect” Construction Power, Los 2.07, omitted; County Angeles v. fn. see Legislative § of Jones 489]), the latter rule is 6 Cal.2d P.2d but assert here, by judicial reformation, because inapplicable petitioners propose repair amendment. rather than observe, the more prob

As recent decisions have approached petitioners Norton, District, and Reclamation supra, lem from differently supra, 171 Cal. on the a statute declared “They 672. proceed principle unenforceable, is in the that it or unconstitutional void sense is inoperative (Jawish the it . v. but not void in sense that abolished . . .” is repealed 96, 97, 1952) Morlet cited decision 86 A.2d and cases (App.D.C. [when Education, Dept, supra, the 2 Cal.4th law. Neither Arcadia School Dist. v. State Unified of 51, 64-65, 256-259, City California, any supra, 50 nor nor Sacramento v. State Cal.3d of of above, authority, suggests prior the explained other rule. established rule is that such a As legal public injustice is result or interest determination not conclusive either if would if requires relitigation (City California, Sacramento v. State not foreclosed. of 51, 64.) authority Although clearly agency, Cal.3d confines public this matter involves a no application public concerning public agencies. of the More exception interest cases authority finding important, application public exception no interest conditions of the “erroneous,” that the initial of an and Arcadia School Dist. determination issue was Unified Education, Dept, joined State without which Justice Kennard Cal.4th reservation, clearly public approach. with such an In that case we found inconsistent issue) (and exception applied only because “[i]f interest thereafter addressed the merits forward, going were barred the law on a matter statewide action from then state (Id. added.) importance permanently italics would remain unclear and unsettled.” Indeed, require a concurring dissenting It would opinion proposes impossibility. an merits, it even address the deciding to resolve matter on its before whether should however, Tellingly, concurring dissenting opinion fails to follow matter on its merits. rejects public unsupported position—it application its own circular interest exception of the issue simultaneously professing while not to address or resolve the merits (Cone. 678-679, Kennard, J., presented. opn. post, & dis. 624 overruled, statute unconstitutional is

declaring statute re- subsequently reenactment]; stored decision by without Ballew v. overruling necessity State Ala. So.2d state statute [construing manner it enforceable federal earlier decision rendering court’s despite unconstitutional, void, same statute In holding subject injunction].) this we find Dombrowski v. regard, Pfister, supra, persuasive. In that case the court an high enforcement of enjoined unconstitutionally statute, overbroad state but the state’s specifically acknowledged authority obtain, court, thereafter to seek and in state a reforma- judicial “narrowing” (Id. tion of the invalidated statute. at 491 & L.Ed.2d at 31 & pp. pp. 32.) event, any note that neither decision of the federal courts in the

Service Employees to “invalidate” the at litigation purported statutes issue here, as interveners on behalf of use that term. The federal respondent district court concluded that “because are measured [sections 85301-85303] a fiscal violate the Constitution of year, they the United States and are I, (Service Employees at italics supra, F.Supp. p. unenforceable.” turn, added.)17 In the federal with “the district appeals agreed simply court’s decision that all of 73’s contribution limits that are Proposition (Service measured on a fiscal basis are year infirm” constitutionally Employ- II, 1321), ees 955 F.2d at supra, affirmed the district court’s p. judg- (Id. 1323.)18 ment. at We therefore interveners’ p. reject federal premise; 85301-85304; instead, court did not “invalidate” it appeals sections enjoined of those sections as written. enforcement

To the extent interveners on behalf of that respondent suggest statute has been labeled invalid” is to be treated it “constitutionally “as had though reformation, never been and hence as not passed,” susceptible Pfister, Dombrowski v. U.S. and our own cases reject Indeed, view. on the leading authority general unconstitutional subject enactments, cited both and interveners for petitioners de respondent, scribes with one of our approval (Quong cases Ham Wah Co. v. Industrial which, Acc. Com. 1190]), 184 Cal. 26 P. 12 A.L.R. it notes, we reformed a workers’ judicially statute compensation by extending (id. benefits to the class excluded statute at et expressly 39p. seq.), after recited; dispositional 17The court’s order “1. All contribution limitations measured on year provisions fiscal basis violate the of the First Amendment to the Constitution unenforceable; hereby United States accordingly, and are declared enforcement of such Permanently Restrained; I, (Service Employees provisions F.Supp. [is] . . .” 593.) judgment regarding court’s the inter-candidate transfer ban of section 85304 language 594.) tracked approach. F.Supp. above, 18As noted appeals federal court found section 85304’s inter-candidate transfer ban grounds, ‘closely “unconstitutional” on dual one of which was that it was “not drawn to ” (955 unnecessary abridgment avoid of associational freedoms.’ F.2d at (184 Cal. at federal Constitution the statute violated finding first (1935, ed. reprint Effect an Unconstitutional Statute (Field, The 36-38). to that judicial authority reaffirmed same 1971), 274.) We have recently (1992) 1 Del v. Wilson In Monte “invalid” statutes. constitutionally reform 826, 632], two veterans’ P.2d we held 824 Cal.Rptr.2d Cal.4th 1009 [4 clause of the ‘‘‘'invalidas violative equal protection benefits statutes 1026, (Id. at of the United States Constitution.” Amendment Fourteenth Nevertheless, reform both statutes added.) by went on to judicially we italics the statutes. excluded benefits to those statutory expressly extending 650.) (Ibid.; see post, such long recognized propriety other decisions have

Numerous 736, 727, Cal.3d 737 (See, (1975) re M. 14 Edgar action. e.g., judicial 574, statute as enacted unconstitu- 537 P.2d [holding 406] tional, see also Davis v. then reforming constitutionality]; preserve 891, L.Ed.2d (1989) U.S. 817-818 Treasury 489 Michigan Dept, 906-907, unconstitutional as S.Ct. state benefits statute 109 [holding 1500] enacted, court to elect reformation and to state between remanding invalidation]; 446 U.S. (1980) v. Mutual Ins. Co. Wengler Druggists 107, 116-117, [same]; v. S.Ct. Orr Orr 152-153 L.Ed.2d 1540] 321-322, S.Ct. L.Ed.2d 440 U.S. 1102] [same]; Stanton v. Stanton 17-18 [43 696-697, we [same].) S.Ct. In view of reject this authority, through of interveners sections position respondent, (and were hence legally judicial rendered nonexistent not susceptible reformation) the federal court’s district judgment affirming appeals of those enjoining court’s order enforcement sections.

C. Summary

We summarize our of interveners’ to consideration disposition objections writ follows: the state law reformation issue in this when proceeding statute, faced a the function a with a of whether to reform state question divine, state’s federal court is to to the best of its how the highest ability, Wilkinson, (Eubanks court would resolve state law issue. above,

F.2d As neither court in the Service noted federal so, did federal and instead both relied law in Employees litigation solely the statutes should not be reformed. concluding interveners on con- suggestions of behalf of

Contrary respondent, clude that a state court is not constrained of res supreme principles collateral on state law judicata, comity, statutory silent estoppel, keep issue, reformation when the to it in such as litigation question presented this. Nor does the federal court’s appeals judgment affirming injunction enforcement of sections 85301 85304 render those against through sections nonexistent and hence not legally reformation. Our susceptible Co., (see as a state last resort Scott v. Bank One Trust sovereign duty N.A., 1077, 1080), 577 N.E.2d consistent with federal- principles ism and that we not comity, the federal court’s requires automatically accept issue, on this state law but consider the reformation ruling important ques- tion afresh ourselves reach different conclusion if state law leads us to that result. matter,

For these reasons we an issued order to show cause in this and therein, now to address the issue proceed whether we presented namely, so, and if may, should reform and order to enforce sections respondent 85302, 85301(a), 85303(a) (b), and and the inter-candidate transfer ban of section 85304. Authority

IV. of a Court Reform a Statute to Preserve Constitutionality

its Interveners and amicus curiae on behalf of assert this court respondent statutes, lacks to reform authority and that if we were to claim such authority, would out of step legitimate judicial bounds and improperly invade the Legislature’s domain. on numerous cases such as They rely Metromedia, (1982) Inc. v. San City 32 Cal.3d Diego 649 P.2d and Blair Cal.Rptr. v. Pitchess 5 Cal.3d 902] 486 P.2d A.L.R.3d in which we 1206]—decisions stated we not rewrite broadly a statute even to its constitution preserve cases, As we shall those ality. with one explain, antique unpersuasive Moreover, are all as we exception, distinguishable. shall explain directly below, numerous decisions of the United States Court and lower Supreme states, court, federal courts and sister and numerous decisions of this amply support propriety judicial reformation—including “rewriting”—of (i) statutes to when so effectuates preserve constitutionality doing closely (ii) articulated policy judgments clearly enacting body, enacting body would have such a preferred reformed version of the statute the invalid over and unenforceable statute.

Because much of the of our own cases rests and flows jurisprudence from decisions of the United States Court addressing judicial Supreme to reform authority statutes to them preserve against constitutional infirmity, court, we will first in some detail survey decisions of and to a lesser high extent, Thereafter, (Post, lower federal and A.) state courts. IV. we will pt. review B.), California cases on that IV. question (post, finally, pt. authority such we have disclaimed noted, in which consider cases we will C.). IV. pt. (post, Court and States Supreme the United enactments

A. Reformation courts other power a court’s The jurisprudential!constitutional 1. foundation Harlan’s Justice constitutionality: its to preserve a statute reform v. United States in Welsh concurring opinion con- to preserve of reformation for the judicial power authority Modem Harlan Justice John to the concurring opinion be traced stitutionality may L.Ed.2d U.S. United States in Welsh v. Welsh, court addressed

321-334, (Welsh.).19 high S.Ct. who, statute, to objectors which objector applied conscientious Congress’s “ ” belief,’ to war. were opposed training of religious reason ‘by from excluded 317].) The statute specifically U.S. “ ‘essentially arose from to induction whose objection those coverage its moral views or merely personal sociological, philosophical political, ” fell within Welsh evidence that (Ibid.) petitioner substantial code.’ Despite 319-320]), the at L.Ed.2d (id. pp. at 341-342 the excluded class pp. [26 (id. at the statute he was covered by nevertheless concluded plurality opinion refusing conviction for 318-319]) and reversed his at 340 L.Ed.2d pp. p. [26 320-321].) L.Ed.2d at (Id. pp. at 343-344 induction. pp. [26 reasoning. to disavow plurality’s Harlan concurred separately Justice eliminated statute’s effectively judgment He asserted plurality’s beliefs, but he never for those with nonreligious exclusion from protection construction,” result, matter of statutory in that “not as a theless concurred for the was circumstances it appropriate that under the but on ground 333, (Welsh, 345 U.S. 398 [26 reform the statute. court to judicially Harlan, that J.).) After 308, (conc. explaining L.Ed.2d opn. 321-322] (1968) (See Levy v. Louisiana 391 recognized power. prior implicitly decisions 19Afew Liability 436, 1509]; Ins. Co. & Glona v. American Guarantee L.Ed.2d 88 S.Ct. U.S. 68 [20 (1969) 441, 1515]; Thompson 394 U.S. (1968) Shapiro v. 88 S.Ct. U.S. 73 L.Ed.2d 391 [20 described, 20]; v. 600, post, fn. Skinner three cases L.Ed.2d S.Ct. 1322] [all 618 89 [22 1661, [described, 1655, post, fn. 535, (1942) 62 L.Ed. S.Ct. 1110] 316 U.S. 543 [86 Oklahoma 971-972, 968, 508, 48 (1928) 33]; 522 L.Ed. 277 U.S. [72 Nat. Ins. Co. v. United States Life class]; Mfg. Co. v. Yale & Towne statutory exemption to excluded [extending S.Ct. 591] 460, 470, 576, 582, S.Ct. (S.D.N.Y. 1919) L.Ed. affd. 252 U.S. [64 Travis 262 F. [same]; [same]; Ky. S.W.2d Kapfhammer 1072] 753 [145 Burrow v. 228] [same]; Com., cf. Iowa-Des Cal. 39-41 Quong Acc. Ham Wah Co. Industrial 272-273, S.Ct. L.Ed. 247 [76 National Bank v. Bennett Moines entity tax was whose of taxes [extending state error miscalculation benefit of calculated].) correctly those, Welsh, intended to exclude from the statute like Congress whose (id. were beliefs not based on at 346-354 at religion L.Ed.2d pp. pp. [26 322-327]), [i.e., Justice Harlan wrote: “If an important congressional policy the conscientious is to be objector policy] uncon perpetuated by recasting here, stitutional as the has done legislation, prevailing opinion analyti sound is to cally for this approach accept responsibility decision. Its justifi intent, cation cannot be resort to term is legislative usually intent, but different kind of employed, namely presumed courts to decide whether it grant power more accords with nearly wishes to eliminate the Congress’ or extend it in order to policy altogether intend, (Welsh, render what Congress plainly did constitutional.” supra, 398 Harlan, U.S. at 355-356 (conc. J.), L.Ed.2d at pp. pp. opn. 327-328] added.) italics that, construed,

Justice Harlan determined the statute ran afoul properly (Welsh, the First Amendment’s establishment clause. U.S. supra, 398 Harlan, (conc. J.).) He then opn. 327-331] addressed the (id. of relief 361 et question L.Ed.2d at seq. 330-338].), and concluded that conviction for failure to submit petitioner’s to induction in the Armed had Forces to be reversed. He “Where explained: a statute is defective because underinclusion there exist two remedial alternatives: a court either declare it a may and order that its benefits nullity benefit, not extend to the class that the intended to or it legislature extend the of the statute to coverage include those who are aggrieved by exclusion.” 331].) U.S. L.Ed.2d at Justice Harlan reasoned that because the statute “created a religious benefit not accorded to it is clear to me that his conviction must petitioner, be reversed under the Establishment Clause of the First Amendment unless (Welsh, Welsh is to remediless.” go supra, 398 U.S. L.Ed.2d [26 Harlan, (conc. result, J.).) He maintained that this “while opn. 331] statute, tantamount to extending is not objector] only [conscientious one mandated Constitution this case but also the I would by approach take had this been in an action for a question presented declaratory judgment or ‘an action in where the enforcement of the final a statute awaits equity determination of the court as to While the validity scope.’ [Citation.] extension, remedial necessary is more to a than operation, analogous graft I think the boundaries of choice amputation, permissible may properly (Id. considered fixed legislative pronouncement severability.” 332].) 363-364 L.Ed.2d at pp. p. clause,

Justice Harlan then the statute’s quoted and asserted: severability is, “In the broad exercising discretion conferred a clause it by severability residual to the course, of commitment intensity measure the necessary statutory of the disruption the degree potential and consider policy (Welsh, abrogation.” extension as opposed that would occur scheme Harlan, J.).) (conc. opn. U.S. from objectors conscientious of exempting concluded that policy He (ibid.), and hence country” tradition in this “one of longstanding induction is statutory the necessary for a court to hazard reason “there is compelling framework made within the administrative if can be they repairs even though they goals, other legislative and without impairing statute section, entail, but rather building upon an offending not eliminating simply 334], omitted.) Harlan fn. Justice L.Ed.2d at (Id. at it.” consci opinion’s “Thus I am accept prevailing concluded: prepared test, intent but statutory not as a reflection of congressional entious objector the defect of underinclusion that cures making of judicial patchwork 334].) L.Ed.2d at (Id. . .” . . below, Welsh, since and more even before frequently

As explained decision, Harlan’s remedial approach court has followed Justice high statutes, has and in the it constitutionality process in order to preserve We outline state statutes. rewritten various federal and some effectively has occurred: in which reformation below three of cases general categories Amendment the First (i) safeguards cases concerning procedural required classifica- (ii) concerning due cases and/or principles procedural process; cause; (iii) cases con- tions underinclusive under the equal protection overbroad criminal statutes. otherwise cerning vague Amendment and procedural 2. statutes to avoid First Reformation of due process problems under a was a

Thirty-SevenPhotographs, supra, proceeding of obscene 1305(a)) federal for the forfeiture statute U.S.C. providing § claimant, who an materials from a imported foreign country. importer book, statute intended to in a asserted the forfeiture publish photographs no because it contained was unconstitutional under the First Amendment customs review of a ensure safeguard adequate procedural prompt Congress official’s decision to seize obscene and because allegedly property not bar of obscene material. importation White, who noted The first issue was resolved in an Justice opinion by invalidated, due that the court had as violations of the previously procedural state, local, laws that likewise three similar and federal guarantee, process failed to review of “administrative censorship” for provide judicial prompt 649, 85 (Freedman (1965) actions. v. 380 U.S. 51 L.Ed.2d Maryland [13 734]; S.Ct. Teitel Film v. Cusack Corp. [19 966, 968-969, 754]; U.S. 410 L.Ed.2d 88 S.Ct. Blount Rizzi 423].) ac- 91 S.Ct. The court Thirty-Seven Photographs [27 that it had declined to “rewrite” the statutes involved in those knowledged 402 U.S. at L.Ed.2d at (Thirty-Seven Photographs, supra, cases p. [28 829-830], added), italics but that was pp. explained rewriting impossible enactments, because the first two cases involved state “and lack jurisdic- (Ibid.) The tion to construe state statute in authoritatively legislation.” reformed, third case could not be the court because so doing explained, have in a manner inconsistent with “would its required complete rewriting (Ibid.) intentions of some of its authors.” expressed White confront us in constru- Justice such obstacles explained “[n]o fact, 1305(a). In into the section of the time limits ing reading required § Freedman is consistent with its by (Thirty-Seven fully purpose.” 830-831].) L.Ed.2d at The Photographs, supra, 402 U.S. p. pp. recited intent to “imme- court legislative history revealing Congress’ require a diate” review of confiscated material attorney, prosecuting (Id., matter final of the a court. 370-371 pp. “prompt” disposition 830].) L.Ed.2d at The court concluded that sole omission was “Congress’ must its failure to exact time limits within which resort to courts specify judicial proceedings completed.” (402 be had and be U.S. at 371 [28 831].) L.Ed.2d at p.

After in the lower cases substantial reviewing involving delays Photo- (Thirty-Seven commencement and completion judicial proceedings 381-382]), the 402 U.S. at L.Ed.2d at graphs, supra, pp. pp. court announced that dictates that we read “fidelity Congress’ purpose time would be to hold limits into the section. alternative explicit only 1305(a) in its has di- unconstitutional but entirety, Congress explicitly § rected that the because its entirety merely section not be invalidated its be U.S. at to some unlawful.” persons adjudged application 831-832].) L.Ed.2d at The court noted that reformation of the statute left to would not us to decide issues of “require policy appropriately in favor of because had set its course Congress” Congress “already prompt- the sole determining ness and we as much possess expertise Congress of the with which remaining question—that speed prosecutorial can, matter, as a to function in adjudicating institutions practical expected 1305(a) We no accordingly declining specify matters. see reason § 1305(a)—a time limits which must be into specification incorporated § will obviate the consistent with and that fully congressional purpose Indeed, raised we conclude that constitutional claimant. objections legislation saving section and the legislative history giving policy

631 construction in order to avoid . . . constitutional questions require undertake this task of (402 construction.” U.S. at statutory 372-373 pp. [28 832].) L.Ed.2d at p.

The court observed that of the lower court many cases “Government in fact instituted forfeiture within 14 of the date of seizure proceedings days [citations]; of the obscene allegedly were goods, judicial proceedings within 60 of their completed commencement. days (Thirty- [Citations.]” Seven Photographs, 832].) 402 U.S. at L.Ed.2d at The supra, p. p. [28 court took this as evidence that those time limits would no precise impose courts, undue on the or the hardship government lower federal and that a of as much as “delay was days” reasonable for in the “importers engaged lengthy into process bringing goods (Ibid.) this from abroad.” country court announced: 1305(a) we construe “Accordingly, intervals of require § no more than 14 from seizure of the days to the goods institution of judicial for their forfeiture proceedings and no than 60 from the longer days filing the action to the final decision in the district court.” U.S. at 373-374 pp. 832].) L.Ed.2d at The court [28 then its reformed applied “construction” case, statute to the facts of the (Id. the seizure. upheld at pp. L.Ed.2d 832-833].) Harlan, Justice who less than a earlier articulated year his view of permissible judicial reformation of underinclusive statutes in his concurring Welsh, opinion 398 U.S. 338], 361 et L.Ed.2d seq. [26 concurred He separately. endorsed Justice White’s analysis, and stated his agreement “that this statutory scheme and should be construed” as set out in the court’s opinion. (Thirty-Seven Photographs, supra, U.S. (conc. Harlan, accord, J.); opn. id. at 834-835] (conc. L.Ed.2d at Stewart, J.).) opn. 835]

Lower federal circuit courts and state courts have followed Thirty-Seven Photographs, and have extended its reformation ap- proach beyond context of First Amendment safeguards, time impose restraints and other conditions mandated the federal or state Constitu- (See tions. Lee v. (2d Thornton 1976) Cir. 538 F.2d 27 federal [reforming statute governing border, forfeiture of vehicles seized as at the security providing deadlines precise statute]; omitted United States v. Monsanto (2d 1991) Cir. F.2d statute]; federal [reforming forfeiture Depart- ment Law v. (Fla. Real 1991) Property 588 So.2d 957 into [reading Enf. state forfeiture statute numerous detailed due process needed to requirements render the constitutional]; statute State ex rel. Berger McCarthy 113 Ariz. 161 P.2d state forfeiture [reforming statute to avoid infirmity by law requiring enforcement officials file notice of intent to

institute forfeiture within 20 proceedings days after vehicle used to seizing State, unlawfully transport drugs]; see also Allen v. Human Com’n Rights (1984) 174 W.Va. 139 S.E.2d into [reading [324 statute mandatory duty 99] of Human Commission to hold Rights within 180 hearing from date of days Book-Cellar, filing State v. complaint]; Inc. 139 Ariz. 525 [679 P.2d state “red [reforming nuisance light” 548] abatement statute by reading into it that court determine requirement within 60 whether to days make permanent preliminary injunction].)

3. Judicial statutes underinclusive under the equal reformation of clause protection Welsh,

Even before Justice Harlan’s concurring opinion U.S. supra, 398 330-338], et L.Ed.2d seq. court followed a high tacitly similar remedial in a number of approach cases underinclusive or involving otherwise unconstitutional classifications in which the court rendered judg- ments that albeit effectively, extended implicitly, benefits statutes to improp- excluded After erly Welsh, Justice Harlan’s groups.20 concurring opinion supra, 398 U.S. 330-331], L.Ed.2d and the court’s opinion in Thirty-Seven Photographs, supra, 402 U.S. high began series of cases in which it equal protection followed tacitly Justice Harlan’s remedial in order approach preserve of various constitutionality benefits statutes. In the it process effectively, albeit not always candidly, elimination rewrote—by addition of words—various federal and some state statutes. Graham v. Richardson (1971) 403 U.S. 365 L.Ed.2d 91 S.Ct.

1848], the court affirmed federal district court judgments extending resident aliens benefits statutory established state assistance public pro grams. The effect of the court’s ruling was to rewrite the classifi statutory cation of beneficiaries to include a excluded. In v. group originally Weber Aetna & Casualty Surety Co. 406 U.S. 164 92 S.Ct. (Weber), in which a similar constitutional was in a problem presented different procedural the court posture, reversed a state court judgment to extend to refusing children dependent “bom out of wedlock” equal entitlement to benefits from a state workers’ scheme. The compensation effect of the court’s in Weber was to affirm ruling general propriety 20See, Louisiana, e.g., Levy v. (reversing judgment refusing 391 U.S. 68 state court law, to extend to right, children bom out of wrongful wedlock the under state to sue for death mother); Co., v. Liability Glona American Guarantee & (reversing Ins. 391 U.S. 73 judgment state court refusing to illegitimate extend to mothers of right, children the under law, wrongful child); state to sue Shapiro Thompson, supra, death of the 394 U.S. 618 (affirming judgments extending district court welfare satisfy assistance to those who did not cited, one-year ante, requirement); residence see also cases fn. statutes, extension of and to force judicial the state court to consider whether ass.21 to extend the statute to include the excluded cl Thereafter, statutes,22 the court continued to affirm judgments extending so,23 and to reverse to do judgments numerous cases. Subse- refusing as the lower courts to order quently, began extension of otherwise underin- statutes, clusive court high entered increasingly judgments affirming In such actions. v. Weinberger (1975) 420 U.S. 636 [43 Wiesenfeld 514, 1225], L.Ed.2d S.Ct. 95 the court affirmed district court judgment that, to all extending a section of the “parents” Social Act Security enacted, benefits granted to “mothers.” only (1977) v. Califano Goldfarb 270, 430 U.S. 1021], 199 L.Ed.2d 97 S.Ct. [51 court affirmed a district court judgment social extending benefits to security widowers on the same (See basis as widows. Some generally, Thoughts Judicial Ginsburg, Authority Repair Unconstitutional Legislation (1979) 23 Clev. St. L.Rev. 301, 310-312 (Ginsburg).) Then, Westcott v. (1979) 382, 443 U.S. 76 L.Ed.2d [61 99 Califano (Westcott),

S.Ct. court 2655] high expressly set out adopted approach Welsh, in Justice Harlan’s 333, concurring supra, opinion 398 U.S. 361 et 308, (Westcott, L.Ed.2d seq. supra, [26 443 U.S. at 330-338]. 89-90 pp. [61 L.Ed.2d at pp. id. at (maj. opn.); 393-394] 94 L.Ed.2d at pp. [61 396-397] (conc. Powell, & dis. J.).) opn. The court’s in Westcott opinion affirmed a district court judgment extending benefits under a public assistance program to children whose mothers’ unemployment them of deprived parental sup The court cited port. (Westcott, many decisions noted directly above 21See also (1972) Richardson v. U.S. 409 1069 L.Ed.2d [34 93 S.Ct. 689] Griffin Weber, (summarily affirming, under judgment district extending court dependent children bom out equal of wedlock benefits); Security entitlement to Social Richardson v. (1972) Davis U.S. (same). 1069 L.Ed.2d [34 93 S.Ct. 678] Dept, Agriculture 22U.S. (1973) v. Moreno 413 U.S. 528 L.Ed.2d S.Ct. [37 2821] (affirming district judgment court extending full stamp food benefits to households in which related). members are (1973) 23See v. Gomez 409 U.S. 535 Perez L.Ed.2d (reversing [35 93 S.Ct. 872] state judgment court refusing to extend to children of parents right unwed parental state law support); Jersey New Rights Organization v. Cahill 411 U.S. L.Ed.2d 619 [36 Welfare 543, 93 S.Ct. (reversing judgment 1700] district court refusing to extend to families with parents other,” who were not “ceremonially married to each benefits from program state assistance to families of the working poor); Frontiero v. Richardson 583, 594-595, L.Ed.2d [36 93 S.Ct. and fn. 25 (reversing 1764] district judgment refusing housing to extend allowance military benefits to women personnel on the same basis granted servicemen, benefits were statute, and suggesting extension of rather than invalidation, course); proper was Hospital Maricopa County (1974) Memorial v. 415 U.S. 250 L.Ed.2d [39 94 S.Ct. (reversing judgment state court refusing to extend nonemer gency medical assistance satisfy to those who did county’s not one-year require residence ment); Weinberger (1974) Jimenez U.S. 628 (vacating 94 S.Ct. 2496] and remanding judgment district court refusing security to extend social benefits to certain children wedlock). bom out of 393-394]), 443 U.S. at and then L.Ed.2d at stated its pp. pp. of what the court had been for the approval doing implicitly

explicit prior It decade. observed that District Court ordered extension rather than “[t]he here, invalidation considerations by way remedy surely equitable (Id. 394].) its choice.” L.Ed.2d at The court then support confirmed the of federal courts to order extension— unanimously authority i.e., reformation—of statutes under otherwise unconstitutional the equal (Id. 394-395].)24 clause. L.Ed.2d at protection p.

The court affirmed and its high extension subsequently applied judicial Co., doctrine in Mutual Wengler v. Ins. 446 U.S. 142. There Druggists supra, the court found a state benefits statute that established a of presumption for widows but not widowers invalid under the dependence equal protection clause. of Addressing question remedy—i.e., “extending presumption (id. of or . . . widowers it for widows” at 152 dependence eliminating p. 116])—the L.Ed.2d at court deferred to the state court. It p. high [64 issue, reasoned that state is at and because a remedial legislation “[b]ecause outcome consonant with the state overall is legislature’s purpose preferable, we believe that state are better an judges to choose positioned appropriate method of (Id. the constitutional violation.” at 152-153 remedying pp. [64 accord, 116-117]; Orr, 268, L.Ed.2d at Orr v. 440 U.S. 283-284 pp. supra, 306, L.Ed.2d for state court to unconstitu- [remanding remedy [59 321-322] tional classification on men Stanton v. alimony imposing obligations only]; Stanton, 7, 688, 421 U.S. L.Ed.2d [remanding [433 696-697] for state court to unconstitutional classification remedy imposing parental 21, 18].)25 males and females support obligation up age age up Thereafter, the court reaffirmed the of the high expressly judi- propriety (Heckler (1984) cial extension v. Matthews 465 U.S. 728 remedy. [79 concurring dissenting justices 24The and accepted general propriety of exten equal protection sion of statutes that would otherwise be invalid under the clause. U.S. (cone, Powell, p. J.).) at pp. opn. disagreement 94 L.Ed.2d at and dis. of Their [61 396-397] in the case application stemmed from power court—they of the believed extension before (Ibid.) Congress’s would “frustrate” and “circumvent” intent. remand, Wengler (See 25On the Missouri and Alabama courts extended their statutes. v. Druggists 8, Mut. (Mo. 1980) Ins. Co. (following intervening 601 S.W.2d 895, statute); 1979) 897.) Orr v. Orr extending amendment (Ala.App. The Utah 374 So.2d court, (the originally high court) rebuffed the asserting authority it state lacked (Stanton “legislate by a bit on our v. Stanton selecting age majority. own” a sex-neutral 112, (Utah 1976) high judgment again 552 P.2d The court vacated that remanded (Stanton 723, v. Stanton 717]), 429 U.S. 501 L.Ed.2d 97 S.Ct. but that time the [50 (id. problem classification Legislature p. had been resolved the Utah at fn. [50 725]), p. age L.Ed.2d at provide majority which amended its statute to an for both remand, sexes. On second the Utah court concluded that both sexes were be treated as age adults at specifically provided but that its no retroactive decision “shall have effect.” (Stanton v. Stanton omitted.) 564 P.2d italics 1387].)26 court stated in unanimous L.Ed.2d 104 S.Ct. its opinion: have a court such a claim ‘two sustaining noted that faces remedial “[W]e either declare order that its may nullity alternatives: statute] [it] [the benefit, not be extended to the class that intended to legislature benefits it extend the of the statute to include those who are coverage States, United aggrieved exclusion.’ Welsh v. [supra,] J., (Harlan, result).” L.Ed.2d . . . concurring 330-331] Matthews, (Heckler 656].) v. 465 U.S. at L.Ed.2d at thereafter, the court the choice Immediately between explained: “Although ‘extension’ and ‘nullification’ is within the ‘constitutional of a competence court,’ Westcott, U.S., federal district [supra,] 91 [61 Califano 394-395], ‘extension, nullification, than rather pp. ordinarily course,’ id., 393], not, at 89 L.Ed.2d at the court should proper course, ‘use its remedial to circumvent the intent powers legisla- ture,’ id., J.), at 94 L.Ed.2d at (opinion 396-397] Powell, should therefore ‘measure the the residual commitment to intensity policy and consider the of scheme degree of potential disruption statutory States, would occur by extension to v. United opposed abrogation.’ Welsh J., (Harlan, result). 398 U.S. at 365 L.Ed.2d at in See concurring p. [26 333] Westcott, (Heckler also v. at v. supra, 90. . . .” Mat- U.S.] [443 Califano thews, at supra, 656].)27 fn. 5 L.Ed.2d p. at [79 p. Most in Davis v. recently, Michigan Dept, Treasury, supra, 489 U.S. of case, (Davis), 803 a tax classification the court endorsed Justice again Welsh, Harlan’s opinion supra, 398 U.S. 361 concurring L.Ed.2d [26 308, 330], and the cases discussed above. court it was “not in explained the best to ascertain the position (Davis, supra, appropriate remedy” 489 upheld 26The constitutionality Security of an amendment to the Social law that perpetuated five-year grace period for a the same sex-based classification declared unconsti Goldfarb, resolving tutional v. 430 U.S. 199. Before that constitutional Califano question—and pertinent present issue, to our inquiry—the standing court first addressed and, in the course of question, propriety judicial its resolution of that it reaffirmed the of statutes, of extension and clarified the remedy circumstances in which do so to courts (465 “constitutionally 656].) p. p. underinclusive scheme.” at U.S. L.Ed.2d at [79 that, plainly 27The court implied if it with question, were faced it would decline to order it, so, extension in the authority case before not general because a court lacks to do but Congress nullification, “clearly because expressed preference had its rather than exten sion, pension of the exception in it p. offset the event is found U.S. at invalid.” fn. 656]; id. at p. 658-659]; L.Ed.2d at see also pp. [79 742-743 L.Ed.2d [79 accord, Federal S. & L. Assn. v. Guerra U.S. & fn. 31 [93 California 613, 630-631, [reaffirming L.Ed.2d 107 S.Ct. propriety of “in cases 683] extension where a invalid,” statute is reiterating otherwise such a case Court must look “the to the legislature intent the state nullify determine or whether extend benefits the statute” (italics omitted)].) 906]) U.S. at L.Ed.2d at p. because so raised “a doing question law within state special expertise courts. It [state] [Citation.] follows that the courts are in the best to determine [state] how to position (Id., with the comply mandate of treatment.” equal L.Ed.2d at 907],)28 In to the response court’s high to state practice courts to deferring select statutes, extension or invalidation of underinclusive state our sister have, state courts with (ante, one remarkable only 25), fn. exception regu- Welsh, followed the larly articulated Justice principles Harlan in 398 U.S. 333 361 et 330-338], seq. and have accepted propriety when, alia, extension of statutes inter “repair” doing so is consistent with intent.29 For when faced with example, statutes, otherwise unconstitutional alimony numerous courts have extended to men a statutory right Likewise, alimony granted women only.30 courts many faced with otherwise unconstitutional workers’ compensation statutes have extended to widowers the same conclusive statutory presump- tion of dependency entitlement to workers’ death benefits compensation granted widows only.31 numerous additional cases various concerning (Davis 28On remand the state court extended the statute. Department Treasury (1989)179 Mich.App. 683 [extending N.W.2d employees retired federal same favorable tax treatment afforded to retired employees].) state and local 29Although some have ground declined to extend statutes on the that on the facts of the case, frustrate, doing advance, so would (see, and not the discernible e.g., intent Compensation (N.D. 1988) 900-901; Kroh v. 899, N.D. Workers Day Bureau 425 N.W.2d v. Hospital, (1982) W.A. Foote 712, Mem. Inc. 714-717]), 412 Mich. 698 N.W.2d even [316 those acknowledge general decisions propriety of extension to avoid constitu- invalidity doing tional supported by legislative when so intent. contrary A occasionally view has expressed, been only dissenting (See, but opinions. Co., e.g., Wengler Druggists 8, v. supra, (dis. Mut. Ins. J.); 601 opn. Donnelly, S.W.2d 9 of (1982) 970, Hewitt v. (cone. Peterson, Or. 33 294 P.2d J.) [653 & opn. dis. of 984] Saif denying can be no that this legislating, [“There court is doing and I believe that in so separation powers violate the of Oregon clause of the Constitution. . . . The effect of [f] this opinion (Fn. omitted.)”]; court’s is to enact a new law. Padilla v. Industrial Commission (1975) 634, (dis. Wren, Ariz.App. 24 42 J.) P.2d opn. [535 of [noting court added words thereby to statute and amended guise construction”].) it “under the statutory of below, explained As California acknowledged cases as well have propriety of extension invalidity to avoid under equal protection (See 641-642, principles. post, 649-651.) pp. 30See, Orr, 895, e.g., supra, 897; Orr v. Murphey (1982) 374 So.2d Murphey v. 103 Idaho 441, 444-446]; (Me. P.2d 1978) 72, 720 [653 Beal v. Beal 388 A.2d 75-76. 31See, e.g., Davis (Tenn. 1980) 718, 721; v. Aetna & Cas. Co. 603 S.W.2d Portman v. Life Steveco, 1983) 284, 287-288; (Ind.Ct.App. Foods, Inc. 453 N.E.2d Tyson v. Inc. Swafford (1981) 862, 2 Ark.App. 866]; 343 S.W.2d Printing (1976) [621 Passante v. Walden Co. 53 178, 181]; A.D.2d 8 N.Y.S.2d (1981) [385 Comp. Appeal v. Workmen’s Bd. 63 Pa. Oknefski Tomarchio v. 846, 849]; Commw. 450 A.2d (1977) [439 Township Greenwich 75 N.J. of 848, 854-855], A.2d [379 have stat- other schemes courts extended or otherwise statutory “repaired” in order to avoid under Courts invalidity principles.32 utes equal protection of criminal in order have extended the reach underinclusive statutes similarly under at least one to avoid invalidity equal protection principles.33 Finally, court ventured even further to statute otherwise invalid state has preserve Co. North America v. Insurance under equal principles. protection of 178], Russell (1980) 246 court high Ga. 269 S.E.2d Georgia [271 determined and substantial legislature would reformation prefer merger of two rather than elimination of constitutionally provisions, outright suspect one extension of other.34 provision 32See, 123, (extend e.g., Rutledge v. Thomas 167 W.Va. 487 S.E.2d 130-131] ing quit” to unemployment “voluntary “marital claimants the same benefits afforded other claimants); Talley (La. quit” Stuckey 1993) v. (extending Succession 614 So.2d to 59-61 illegitimate granted legitimate children the a will only benefits of revocation statute to children); (noting v. power “repair” Hewitt 653 P.2d 980-982 court’s Saif appropriate extending otherwise unconstitutional statutes “in to cohabit circumstances” ing females); compensation males the granted cohabiting same workers’ benefits Davis v. Department Treasury, supra, (extending employees 446 N.W.2d to retired federal same favorable tax employees); treatment afforded retired and local Padilla state Commission, (reforming Industrial compensation 535 P.2d 636-638 workers’ extending wage statute to child of earner presumption dependency female same afforded earner). wage to child of male 33See, e.g., People v. Liberta 64 N.Y.2d 152 and footnote 15 N.Y.S.2d 218-219, 567], citing (extending N.E.2d additional cases rape reach of to married law rape males); (Alaska 1979) men who rape their wives and who females Pías v. State P.2d (extending coverage males); (Idaho prostitution 968-969 statute to State v. Books 1975) (extending bribery N.W.2d gifts statute to cover receipt unlawful county employees). state as well as Likewise, high court earlier approved extension as an alternative to invalidation state (Skinner criminal statute under equal protection otherwise invalid clause. v. Okla- homa, supra, law, subject Under Oklahoma habitual criminals were class, compulsory sterilization. were specifically exempted Embezzlers from that but petty (Id. 1657-1658].) larcenists were included. pp. 536-537 pp. high L.Ed. at classification, found no disparate sufficient state interest in that equal protection found an (Id. pp. 1660-1661].) statute, violation. invalidating L.Ed. at Instead of however, the court remanded to court to state allow it to determine whether to invalidate or extend providing (Id. the statute for sterilization of pp. the excluded class. at 542-543 [86 1661-1662].) pp. L.Ed. at On remand the state court selected invalidation over extension. (Skinner (1945) ex v. State rel. 716].) Williamson 195 Okla. 106 P.2d [155 Russell, 34Insurance Co. North America v. a 271 S.E.2d concerned workers’ of compensation statute that surviving established conclusive presumption spouse’s of a dependency on spouse, a deceased set out establishing but for presumption different tests for surviving (a) men and surviving women. Subdivision of the statute allowed a wife to dependency establish if voluntarily she “had not abandoned the time deserted or at of [him] (Id., 179.) (b)

the p. accident.” at of provided surviving Subdivision the statute that a husband dependency could only establish if he “lived at the [with his time of the accident” and wife] was “then incapable of self-support actually (Ibid.) dependent her.” The court acknowledged disparate equal protection classifications violated federal principles 181), p. S.E.2d at legislative accomplished determined that “the intent can best be otherwise or overbroad criminal vague

4. Judicial reformation of statutes court has endorsed the of reformation

Finally, high propriety context of otherwise or overbroad criminal of statutes statutes— vague criminal statutes—and has state courts to do obscenity encouraged namely, as well. so In 413 U.S. 15 L.Ed.2d S.Ct. Miller [37 2607] California

(Miller), that “obscene” are confirmed materials not high protected Amendment, the First but limited the materials to nonprotected scope that, alia, those inter sexual conduct offensive “portray patently way.” that, (Id. 430-431].) at L.Ed.2d at The court in order pp. required p. to be such conduct be defined state regulated, “specifically applicable law, (Ibid., omitted.) or fn. Thereafter as written construed.” authoritatively the court “a few of what a state statute could define for gave plain examples “(a) under its standard: offensive or regulation” Patently representations acts, simulated[, of ultimate sex normal or actual or perverted, descriptions (b) or of masturba offensive Patently representation descriptions and] [1 tion, functions, (Id. and lewd exhibition of the at excretory genitals.” p. 431].) L.Ed.2d at p. Brennan, (Paris I v.

Justice in a case Adult Theater dissenting companion 2628]), Slaton asserted the 93 S.Ct. court’s Miller standard would “invalidate state law virtually every relating (id. (dis. at fn. 13 L.Ed.2d at obscenity” suppression Brennan, J.).) the Miller court stated: “We do not hold opn. response, . . . that all States . . . must now enact statutes. Other new obscenity statutes, hereafter, state as construed well be heretofore existing (ibid.) eliminating presumption dependency the conclusive of widows” rather than extend (id. noted, however, 181-182). ing presumption to widowers The court that unless statute, adjustments subject it made additional to the widows would be to the limited that, believed, presumption applicable legislature to widowers—a result the court did not (Id. problem, scrap intend. To resolve that the court decided to the widowers’ test well, merge hybrid provision: power and to the two “A subdivisions into a court has the merge provisions equal protection into one two invalid under clause when the result achieved is more complete consistent with intent than the result that would attend (Ibid.) explicitly invalidation of one or the other.” court then set out its reformation otherwise, Assembly provides statute: the General as a result of this decision “[U]ntil (a) (b) subparagraphs following together, should be read as follows: ‘The [the statute] persons conclusively presumed wholly support shall be dependent to be the next of kin (a, b) surviving spouse upon spouse a deceased the survivor upon the employee: deceased A if ” (Ibid., wholly partially dependent support support.’ was or such or was in need such of added.) Clearly, Georgia Supreme engaged rewriting italics Court of the substantial constitutionally statute in order preserve provisions. to reform and its otherwise invalid

639 [(1973) See United States v. 12 200-Ft. Reels Film 413 U.S. adequate. of 500, 123,] (Miller, n. 413 at [p.] at 130 7 L.Ed.2d U.S. p. [37 507].” 24, 430].) at fn. 6 L.Ed.2d [37 (1973)

In cited 7 of footnote United States v. 12 200-Ft. Reels Film of 123, 500, 507, 413 L.Ed.2d U.S. 130 S.Ct. 200-Ft. Reels 93 [37 of Film), court stated: we must leave to state high courts “[W]hile construction of state we do legislation, have con- duty authoritatively ‘ ’ strue federal statutes where “a of serious doubt is raised” constitutionality ‘ of the “a construction statute which the fairly possible by question ’ v. Thirty-Seven be avoided.” United States 402 may Photographs, U.S. 822, 829-830, White, (1971) 1400], L.Ed.2d J.) 369 91 S.Ct. [28 (opinion .... If when such a ‘serious doubt’ is raised as to the vagueness ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘indecent,’ words or as ‘filthy,’ ‘immoral’ 1305(a) used to describe material 19 U. S. C. and 18 U. S. C. regulated § 1462, ... we are to construe prepared such terms as limiting regulated § material offensive of that patently representations descriptions specific ‘hard core’ sexual conduct as in Miller v. given California, [supra, examples 413 at 25 L.Ed.2d at See United [page] U.S.] [37 States v. page 431]. Thirty-SevenPhotographs, supra, at 369-374 L.Ed.2d [pages] [402 U.S.] [28 White, at J.). 829-835 .”35 pages . . (opinion Film, Subsequently, citing footnote 7 12 200-Ft. Reels 413 500, 507],

U.S. 130 L.Ed.2d and Thirty-Seven Photographs, supra, [37 822, 829-830], 402 U.S. L.Ed.2d court its high [28 imposed elaborate saving gloss—i.e., “hard core” sexual conduct specific given Miller, examples supra, 413 U.S. at L.Ed.2d at page page [37 431]—to preserve against a vagueness challenge a federal statute prohibiting mailing obscene (1974) materials. v. United (Hamling States 113-116 590, 618-620, L.Ed.2d Thereafter, 2887].) [41 94 S.Ct. most state courts (see, State v. A e.g., (1976) Motion Picture “The Entitled Bet” 219 Kan. 760, 767], P.2d cited), (see

[547 cases our own Bloom v. including (1976) Court Municipal 229]) Cal.3d 545 P.2d [127 expressly See, 35The court has analogous invited reformation state courts in contexts. e.g., Virginia v. American Booksellers Assn. 484 U.S. 383 L.Ed.2d 108 S.Ct. 636], in which high court it asserted would rewrite a law “not state to conform it to (id. requirements” 796]), constitutional at then but certified to the state supreme court question whether a statute that criminalized commercial display children,” “harmful susceptible materials narrowing was of a construction that would (Id. render it pp. 796-797].) constitutional. response, L.Ed.2d at state statute, imposed saving holding only construction on the it “the opportunity barred [a juveniles afford they to take off the bookseller] shelves books which are unable to Assn, (Com. buy, and to read v. American Booksellers Inc. them in the store.” 236 Va. 618, 624].) S.E.2d same, did the onto various states’ statutes the detailed thereby grafting articulated court in Miller. In so the state gloss high doing courts determined—most often reformation was an only by implication—that statutes, exercise of and that reformation of the appropriate judicial power, them, rather than most was consistent with intent.36 invalidating Arcades, More in Brockett v. Inc. recently, Spokane 472 U.S. 491 Arcades), 105 S.Ct. court (Spokane high ap- [86 a similar reformation aof state statute that the term “lust” proved employed in its definition of obscene matter. The United States Court of regulated Ninth Circuit had invalidated the entire statute on the Appeals ground term was overbroad because it reached material that unconstitutionally stimulated “normal sexual in addition to material that merely was responses” that subject regulation—i.e., “morbid and shameful properly evincing 400], Distributors, (Id. interest in at sex.” L.Ed.2d at J-R p. p. citing [86 (9th 1984) 490-491.) Inc. v. Cir. 725 F.2d The court Eikenberry high reversed.

The court first declined to construe the term “lust” as referring only Arcades, conduct that could be All U.S. properly regulated. (Spokane at 403-404].)37 L.Ed.2d at The court pp. then noted that a “ unconstitutional, ‘statute be in may constitutional and and . . . part part other, if the are of each that which is constitutional parts wholly independent ” stand while that which is may (472 unconstitutional will be U.S. rejected.’ 405].) at L.Ed.2d at federal p. p. that “a court should not Cautioning extend its invalidation of a statute further than of the necessary dispose it,” (ibid.) case before the court concluded the statute could be saved through a combination of severance and tacit insertion of “Unless limiting language. considerations, there are law should have been countervailing [state] invalidated as the word only ‘lust’ is to be understood as reaching insofar (Id. 406], materials.” protected added.) L.Ed.2d at italics The p. p. court observed that state law disfavored the entire statute and invalidating 36Some In State v. A Motion Picture question directly. decisions addressed this latter “ Bet," Entitled “The P.2d Supreme the Kansas Court stated: ‘We realize to construe the statute to meet constitutional subject standards we to the accusation However, invading province legislature. that we are considering of the after the manifest legislature statute], intention passed when fully justified it ... we feel [the construing limiting present statute to meet constitutional standards. Such was the (Id. original legislature.” intent of the Kansas 37The appeals federal court high had declined to so construe statute. recognized authority adopt its a construction appeals of the statute different from that of the court, ultimately 404]) but “pretermitted” issue U.S. at L.Ed.2d at because it concluded that the federal appeals failing court of “fell into another error” in (Ibid.) save the statute a form of severance. (id. favored severance at L.Ed.2d at 407-408]), and surmised p. pp. [86 that the state would a statute that was so severed legislature prefer limited a definition of “lust” that excludes material that stimulates merely “normal sexual it reversed the invalidat- responses.” Accordingly, judgment (Id. the statute. ing 408].) L.Ed.2d at p. [86 all

Although decisions in which courts enactments preserve severance reformation, are to some extent examples judicial significance Arcades, Spokane 472 U.S. lies of severance it type The court severed from the employed. statute any meaning “lust” that would include material that merely stimulates “normal sexual In responses.” words, other the court introduced into the statute implicitly words of limita the reach of the tion—confining otherwise overbroad term “lust” to cover only material “whose is to a predominant ‘shameful or morbid appeal ” (id. interest’ in sex 402])—in L.Ed.2d at order to uphold (See the statute’s also validity. United States v. Treasury Employees __, 964, 986-988, 115 S.Ct. (maj. opn. 1003] Stevens, J.); id. at p--[130 (conc. L.Ed.2d at & dis. opn. 992-994] _ O’Connor, J.); id. at p. (dis. L.Ed.2d at pp. opn. 1002-1003] J.)C. Rehnquist, recognizing of court to “rewrite” authority [all statute to preserve constitutionality].)

B. statutes by courts Reformation of California that,

Our own Welsh, cases reveal with consistently and its numer- ous high predecessors and it is progeny, some situations appropriate reform—i.e., for courts to “rewrite”—enactments in order to avoid constitu- tional when so “is infirmity, more doing consistent with intent than the result that would attend invalidation.” outright v. Workers’ (Arp Comp. Bd. Appeals 19 Cal.3d

P.2d below, As (Arp).) court, like the explained we have high reformed statutes to preserve their in cases constitutionality classifications concerning otherwise clause, invalid under the equal and in protection cases involving criminal statutes otherwise unconstitutionally vague overbroad. In addi- tion, our decisions have reformed statutes to confer due necessary procedural process protections, to avoid classifications under the impermissible First Amendment, and to avoid nullification under the judicial powers provision of our own Constitution.

1. Guiding principles: the case Arp Although Arp, supra, 19 Cal.3d was a case in which we ultimately determined not to reform statute, infirm that decision constitutionally both cases, of such a role in

confirms the propriety appropriate on the reformation here. posed provides guidance question Richardson, we a unanimous Justice considered Arp, supra, opinion by a widower’s to a section of the Labor Code workers’ challenge governing (a), section benefits. Former Labor Code subdivision compensation to be that a widow was conclusively presumed totally dependent provided husband, her deceased but created no such for a widower. presumption Instead, scheme, forced under the a widower was to establish the statutory fact and extent of on his deceased wife. court Following high dependency Richardson, 677; decisions cited above Frontiero v. 411 U.S. (e.g., supra, 636; v. 420 U.S. v. Wiesenfeld, Goldfarb, Weinberger Califano 199), we held the statute infirm under the U.S. clauses equal protection 407.) of the state and federal Constitutions. 19 Cal.3d at (Arp, supra, p. We then addressed “the Petitioner us the remedy. urges question upon course and Frontiero: extension of Goldfarb, statutory adopted Wiesenfeld alike, benefits to males and females without to actual regard dependency. courts do not lack the a constitu- Although power remedy [Citation.] [f] tional it is a by literally rewriting statutory language, comparatively defect alternative, drastic to be invoked when the achieved only result sparingly, by such a course is more consistent with intent than the result that legislative would attend invalidation. Cal.3d at outright (Arp, supra, pp. [Citations.]” 407-408, added.) italics

We noted that in v. U.S. Weinberger Wiesenfeld, supra, high “in effect held that substitution of the word for the word ‘parent’ ‘mother’ was consistent with intent to subsidize care Congressional parental 408), for minor children” Cal.3d at and that the similar (Arp, supra, 19 reformation in was also consis- Goldfarb, supra, Califano (19 tent with intent. Cal.3d at Congress’s concluded, however, different,”

We that own case is somewhat “[o]ur “clear, that there was if evidence that the “did not want Legislature antique” actual, widowers to receive in excess of their demonstrable compensation financial loss: it limited surviv- repealed original affording presumption husbands total on a ing benefits dependency showing only partial depen- 408-409, In Cal.3d at italics in addi- dency. original.) [Citations.]” tion, we observed that extension in such “benefits” cases posed special that militated in favor of reformation. We observed problem legislative action would have some on workers’ undoubtedly impact compen- “[s]uch rates, sation insurance since the rate structure has been present presumably calculated without reference to the additional risk maximum carefully (id. 409) . .” and that under for all cases of female fatalities . payout is uncertain” and hence “judicial those circumstances “legislative preference (Id. 410.) we also noted that caution is at p. closing, appropriate.” the overall invalidation rather than extension would not substantially disrupt scheme, or unfair to an em- “any workers’ compensation impose hardship (ibid.), other valid of the scheme remained survivors” because ployee’s parts (Ibid.) those interests. protect 395, thus for the 19 Cal.3d stands courts Arp, supra, proposition cases, “to a constitutional defect remedy possess authority, appropriate when so is “more consistent by literally rewriting statutory language” doing with result invalida- intent than the that would attend outright tion,” but that such action is reforma- when improper suggested intent, tion is inconsistent with the or when that intent cannot Legislature’s below, be ascertained. As both before and since 19 explained Arp, supra, 395, Cal.3d we have reformed to statutes constitutional defects remedy with the our resolution of consistently principles governed Arp. overbreadth, 2. statutes to avoid or vagueness, Reformation of due procedural process problems

In a substantial number of cases we have constructions on saving imposed terms, otherwise unconstitutionally vague thus statutes while preserving that, effect, the same time a crucial adding judicial gloss practical operates above, as a judicial reformation of the statute. As noted one such case was Court, 71, 81, v. Bloom 16 Municipal supra, Cal.3d in which we—like most other state courts—added a substantial textual to our gloss “obscenity” (Pen. Code, 311.2) statute in order to save it a claim that it was against § void After vagueness.' court decisions described reviewing high above, Film, 123, 12 200-Ft. Reels 413 including U.S. supra, Thirty- of 363, Seven Photographs, we held our Penal supra, Code section “is . . . limited to offensive or of the patently representations descriptions ‘hard core’ I[, sexual conduct specific in Miller given examples i.e., (37 acts, 415 U.S. at 431)], 25 L.Ed.2d at page ‘ultimate sexual simulated,’ or masturbation, normal actual or perverted, func excretory ” tions, and lewd (Bloom, exhibitions of the genitals.’ 16 Cal.3d at Thereafter, 238, in Pryor (1979) v. Municipal Court 25 Cal.3d 256-257 330, 636], P.2d Cal.Rptr. [158 599 we concluded that Penal Code section 647, (a) subdivision conduct), was The (disorderly unconstitutionally vague. “ statute made criminal one solicits in or who anyone engage ‘[w]ho in lewd engages or dissolute conduct in or in any public place any place ” (25 243-244, to the or Cal.3d at public public view.’ open exposed statute, omitted.) italics preserve order revised its scope, 647, at the construction of “arriv[ing] following (a): section subdivision terms ‘lewd’ and in this ‘dissolute’ section are and refer to synonymous, conduct which touching involves buttocks or female genitals, arousal, offense, breast for the sexual or purpose gratification, annoyance if actor know knows or should persons who presence offended his conduct. The statute such conduct if it prohibits occurs only or in any public place any to the or place open public exposed public view; it further the solicitation of conduct such to be prohibits performed or in to the or public place place view any any open exposed public public . .” 256-257.) . . Cal.3d at pp.

In numerous other we have cases reformed similarly partly overbroad statutes—and in so doing what amounts to a refor vague imposed Los Angeles v. (See, Oil mation terms. e.g., City Belridge statutory In re Kay Co.(1954) 5];38 (1970) Cal.2d 832-833 P.2d 1 Cal.3d re Bushman 142];39 In (1970) P.2d Cal.Rptr. 1 Cal.3d Morrison v. 727];40 State Board 463 P.2d Cal.Rptr. 214, 225, Education Cal.3d P.2d 375], cited;41 Barrows Court and cases 1 Cal.3d Municipal noted, imposed 38A local ordinance broadly gross receipts. a license tax on all We “[t]o city levy a to upon gross allow a license based receipts selling tax attributable to activities city outside the would be an unreasonable a denial equal protection discrimination and of Oil, (City Angeles Belridge 832.) the law.” Los supra, p. v. In preserve Cal.2d order to ordinance, constitutionality the of the we provide construed it “that the tax to measure of the gross receipts selling [city’s jurisdic be limited to those attributable to activities within the (Id. 833.) p. tion].” 39The anyone “willfully meeting. Penal Code crime for any makes it a lawful disturb[]” Code, (Pen. 403.) the term We found overbroad it protected because would criminalize § Amendment, statute, speech under the First and in order the preserve we construed it “to require following the showing transgression: substantially to establish its that the defendant impaired meeting the conduct by intentionally committing of the implicit acts in violation of usages knew, or governance customs or of explicit meeting, rules for or of the of which he (In 930, a man Kay, 943.) reasonable should supra, have known.” re Cal.3d 40ThePenal Code anyone made it a crime for the peace” to “disturb or “breach the peace.” Code, (Pen. 415, 1263, 1974, 1, by 2742.) former repealed p. Stats. rejected ch. We a § § that the claim terms are protected speech overbroad criminalize under the First Amend ment, by construing disruption mean public by terms “to order acts that are themselves Bushman, (In 767, or 773.) violent tend to supra, incite others to violence.” re 1 Cal.3d license, 41TheEducation provided teaching Code showing “any revocation of a on a Code, 1976, involving (Former 13129, (e), act turpitude.” moral Ed. repealed by subd. Stats. § 1010, 1, 2384.) p. ch. We found the term implicated overbroad it protected privacy § because interests, statute, and in preserve order to we it to or construed “denote immoral unprofessional turpitude conduct or moral of the teacher which indicates unfitness to teach.” (Morrison Education, 214, supra, 225.) v. State Board 1 Cal.3d 819, 205, In re Cox 483];42 (1970) 464 P.2d 3 Cal.3d 827-828 Cal.Rptr. [83 ;43 Braxton v. Court (1973) 10 Municipal 474 P.2d Cal.Rptr. 697];44 Associated Cal.3d 151 et 514 P.2d seq. Cal.Rptr. etc., Home Builders Inc. v. Livermore City 18 Cal.3d v. Freeman 473];45 46 Cal.3d People 557 P.2d Cal.Rptr. 1128].46) P.2d In of these we each cases so more in

reformed statutes because was with doing keeping discernible will than them down.47 striking anyone engage 42ThePenal Code makes it a crime for in “lewd or dissolute conduct in (Pen. Code, 647, (a).) any public place open public exposed public to the or view.” subd. § would, according We noted the statute if to its literal interpreted apply terms to to live Amendment, performances, protected speech pose theatrical criminalize under the First (Barrows Court, 827.) equal protection problem.” Municipal supra, “serious v. p. 1 Cal.3d at Accordingly, we construed the inapplicable performances. practical statute as to such effect, analogous high this is to the reformation severance effectuated court in Arcades, Spokane supra, All U.S. 491. vagueness 43In order to problems, avoid constitutional we construed trespassing a local conduct,” proscribed ordinance that personal “offensive to “coincide with those offenses street, sidewalk, punishable (obstruction under Penal Code public section 646c of a or other (In Cox, area).” 223.) re 3 Cal.3d at 44The Penal Code anyone makes it a crime for disrupts orderly operation who of a college campus campus being remain on a after notified that consent to remain has been (Pen. Code, 626.4.) withdrawn. We found the section overbroad because it would criminal- § Amendment, statute, protected speech ize preserve under the First order to permit construed it campus “to exclusion from the only of one whose conduct or words are constitute, to, such as to or incite physical disruption substantial and material incompatible peaceful functioning with the upon campus.” academic institution and of those its (Braxton Court, Municipal 150.) 10 Cal.3d at growth 45We construed a local control give specific ordinance “to content to terms that

might otherwise be unconstitutionally vague.” “Following Cal.3d at the course Braxton, suggested 138],” [supra, 10 Cal.3d we reformed incorporate the ordinance “to determining standards for the overcrowded condition of schools contained resolution [a adopted by construed, the local school So provides board]. the ordinance a clear and guide ascertainable educational building standard to permit. issuance denial of a . . .” (Id. 598-599.) pp. 46ThePenal anyone Code makes it a crime for “procure[] person to purpose another for the (Pen. Code, prostitution 266i.) would, of . . . .” We noted the interpreted apply statute if to § hiring film,” to the perform actors to in a “nonobscene commercial obviously place “rather a substantial burden on protected rights.” the exercise of (People First Amendment v. Freeman, supra, 46 Cal.3d at p. Accordingly, we construed the statute as inapplicable to (Ibid.) effect, Again, such practical transactions. analogous by this is to the reformation Arcades, high Spokane severance effectuated court in All U.S. 491. yet category 47In another statutory cases we have reformed schemes to make them process consistent with due requirements by reading right hearing. into enactments the to a recently, Most example, People (1993) for Dept, Transportation Traverso v. ex rel. 6 488], Cal.4th 1152 Cal.Rptr.2d long 864 P.2d we reaffirmed holding a line of cases we will infer the due process right to a hearing—even statutory in the silence— face of when there is some basis on enacting body which to conclude that the would have intended to require hearing a (See had it foreseen the necessity hearing. constitutional of such a pp. id. at [reading right hearing billboard]; 1163-1166 into People statute to before removal of v. Amor because neither nor intervener on their behalf

Apparently petitioners cases, discusses these interveners and amicus curiae on behalf respondent them or do not discuss their to the challenge applicability present litigation. We assume that if them pressed, might on the they attempt distinguish not we were forced in those cases to and to ground disregard language instead, we substitute reformed a “construc- language; simply saving placed tion” on the statutory the reach of the statute. language, thereby constricting distinction, view, in our a difference of not kind. In suggests degree, each of the cited and overbreadth cases we declined to vagueness effect give statutes, words” of the reformed “plain meaning instead effect, to save them statutes to in order and make enforceable.48In practical cases, in all of we each these “rewrote” statute in order to its preserve constitutionality. 3. statutes to avoid violation state constitutional Reformation of

prohibition M., M.), In re Cal.3d 727 a unanimous Edgar (Edgar opinion by Chief Justice illustrates Wright, limits of reformation permissible M., of a statute in order to conform it to constitutional Edgar principles. considered constitutional to Welfare Institutions Code challenge section which governed for after a juvenile’s application rehearing referee’s a ward of “ decision the minor the court and him declaring removing from his The statute ‘If home. all of the before the provided: proceedings referee have taken an been down official of the judge reporter, after juvenile may, of such reading transcript grant proceedings, such If before deny the referee have not been taken application. proceedings down an official such shall be as of If reporter, granted right. application an for is not within 20 date application rehearing granted following days court, However, cause, of its it shall be deemed for denied. receipt, good extend period such but not in event beyond days, beyond any days, date of at which time the following receipt application, shall be deemed denied within application rehearing granted unless it ” 736-737, such period.’ added.) Cal.3d at italics (1974) [reading right Cal.3d 523 P.2d into statute 1173] hearing, required by appointed before criminal defendant to reimburse court costs incurred counsel]; Racing Carroll v. Horse Board 16 Cal.2d P.2d 110] California Simpson right license]; [reading hearing into statute before revocation of horse trainer’s City Angeles Los [reading right 40 Cal.2d P.2d into statute hearing facilities]; see also Merco impounded before animal be released to research Engineers, Angeles Constr. Inc. v. Los Sch. Dist. Cal.App.2d 168 [79 Unified 23], cited.) cases (ante, 48Likewise, process 47), hearing by in the due fn. each expanded cases we statute Constitution, reading hearing right necessary into it a the set out in under but not the law as enacted. to a binding effect give two sentences purported Because the latter court, a we action trial by without requiring any referee’s decision juvenile a referee’s restrictions on powers. violated constitutional concluded they however, statute, of the we a “construction the sought of invalidating Instead the yet preserve parts application that will eliminate this invalid [statute] the constitutional which do not violate and applications [statute] effect intended into put the would have Legislature and which provisions M., 14 Cal.3d supra, restriction.” (Edgar it had foreseen the constitutional if the best 736.) Legislature’s that we could effectuate We determined than of the statute’s rather language the effect” intent “by altering operative “To strike the last two altogether: the two sentences offending striking time which the on the during the section would remove limits sentences from action The be .... awaiting an could rehearing pending application However, Legisla as it in . . . 1961 .... the would then read did section the sen this omission by introducing ture showed its dissatisfaction with salutary into The by tences the section amendments [citations]. of uncer of the amendments was to indefinite prevent prolongation purpose order court.” referee’s order as the of a the status of a tainty concerning M., 737.) 14 Cal.3d at (Edgar supra, “We that the intent will be more

Our believe opinion explained: altering effectuated within constitutional restraint fully by operative rather than them striking altogether. quoted effect these sentences before referee if the provides proceedings section that portion for rehear have not been down an official an by application taken reporter, have taken must be as a If the been matter ing granted right. proceedings within a but the not... on the application down does act by judge reporter as should be as a matter practical treated required period, proceedings had we conclude we can best harmonize if been Thus they unreported. with statutory the constitutional command requiring purpose literal which would be ‘deemed denied’ under the section’s applications wording unacted-upon instead as of granted right, thereby applying which the Legislature based on the rule reported applications proceedings M., laid (Edgar has down for based applications unreported proceedings.” M., reformed Cal.3d at we Edgar substantially Clearly, —indeed, order to it to “rewrote”—two sentences of the statute in conform effectuate, Leg constitutional as as closely possible, principles, intent, and its islature’s which from the statute gleaned history.49 M. as an to dismiss Edgar Amicus curiae on behalf attempts respondent ‘forced, least, case . . [embodying aberration—“to an unusual . say a] 407-408, M., supra, 14 Arp, pages Edgar 49In we cited Cal.3d 19 Cal.3d “remedy a defect example power an case in which courts constitutional possess more literally rewriting statutory language the result such course is . . . when achieved outright with legislative consistent intent than the result that would attend invalidation.” ” strained, of and unsatisfactory statutory construction.’ principle (Quoting (1979) v. Belton 23 Cal.3d People 591 P.2d Cal.Rptr. Jefferson, (dis. J.).) of Interveners behalf of on the opn. respondent, 485] hand, M., other and result 14 Cal.3d accept analysis Edgar intent, consistent with the being but Legislature’s attempt distinguish on the “the case electorate’s intent with present ground regard 73 much harder to discern.” We with Proposition interveners’ agree M., dismissed, concession that Edgar supra, cannot be as amicus implicit decision, curiae would as some of mutant that the suggest, kind dispos- itive in the on the present case centers electorate’s intent. inquiry 4. underinclusive enactments to avoid First Amendment of Reformation

problems San Francisco v. Eller City County Outdoor Advertising of (Eller), con Cal.App.3d Court Appeal sidered the Francisco’s constitutionality San ordinance both regulating commercial and noncommercial The court found the ordinance con signs. measure, stitutional in most but part, held one which set out aspect from conflicted with the exemptions regulation, First Amendment. The were in four subdivi suspect categories signs contained exempted “

sions 603 of (c) of section the ordinance. Subdivision exempted ‘Tempo without structural in connection rary display posters, independent support, health, with and with civic non-commercial political campaigns safety, “ welfare (d) subdivision of a campaigns’ exempted ‘[temporary displays (f) charitable character’ or civic subdivision patriotic, religious, exempted “ “ (h) ‘Commemorative and subdivision plaques’ exempted ‘Religious (Eller, symbols attached . . . .’” at buildings supra, 192 Cal.App.3d pp. 649-650, 3.) fn. court, decisions the Court of concluded Following high Appeal “ these had ‘in the area city exemptions impermissibly attempted of, between,

noncommercial to evaluate the speech[,] or strength distinguish various communicative interests. With to noncommercial respect [Citations.] not speech, City may choose the dis appropriate subjects public (Eller, 661-662, course. . . .’” Metro- supra, 192 Cal.App.3d pp. quoting media, Inc. v. San U.S. Diego

819-820, 2882].) S.Ct. these Eller concluded exemption were provisions with First under Metrome “incompatible Amendment” dia, U.S. supra, 453 to determine “whether the defect we proceeded have noted requires invalidation of entire ordinance whether the constitutionality.” can be in such save its construed as to offending provisions way er, (Ell Cal.App.3d Metromedia, v. City Diego, in Inc. San court noted that The Eller of 180, 187-191, local ordinance reform similar we declined to

32 Cal.3d ban on intent to impose comprehensive because the enactors’ principally with reformation incompatible all was signs noncommercial practically (Eller, supra, 192 Cal.App.3d noncommercial signs. ordinance exempt however, observed, Francisco the San 663.) at As Court Appeal intent, i.e., “the vast majority to exempt revealed the ordinance opposite 664.) at (Id. expression.” noncommercial “In of the ordinance’s light apparent purpose court concluded: done to little violence is forms of noncommercial

allow most speech, (c) and in created subdivisions to interpret exceptions legislative purpose messages, all of noncommercial (d) categories of section to embrace the consti- it from saving the ordinance’s neutrality thereby preserving Metromedia[, the United States Court by Supreme tutional raised problem of tolerance Given the high degree v. San Diego, supra, Inc. 490]. legis- exhibited San Francisco’s sign for noncommercial communication by that, lation, the First believe had the foreseen we supervisors] [board would chosen an created section have they Amendment difficulties broadened, areas of rather than narrowed permissible which interpretation avoid in order to Finally, vagueness problems ideological expression. [1] (d)], term section subdivision we construe with the ‘temporary’ [in set forth in section modifying accord with the phrase description ” itself., i.e., (c) structural support.’ subdivision ‘without signs independent (Eller, 664-665.) supra, 192 Cal.App.3d words, San Francisco’s

In other the Eller court reformed section alia, inter noncommercial extending ordinance most by, exemption effect, rewrote the to all the court noncommercial signs signs. practical listed in the including” section to “All noncommercial those signs, apply subdivisions, intent. legislature’s various in order effectuate the local equal 5. underinclusive statutes to avoid protection Reformation of violation authority

Even before Cal.3d a court’s Arp, recognized we to extend reform statutes statutory underinclusive classifications thereby in Hayes in order to avoid an For violation. equal protection example, 1137], Court P.2d 6 Cal.3d Superior we reformed a statute that discriminated unanimously unreasonably against state, but out of extending defendants convicted in California imprisoned to those those convicted and enjoyed benefits persons imprisoned statute, (Id. that doing California. In so stressed reforming intent, and so was most consistent with the apparent explained: “A which excludes some but not all of arbitrarily classification statutory those situated in relation to the statute legitimate similarly purposes (Skinner Oklahoma:[, invalidate the entire statute. v. does not necessarily 535, 1655, 1661]; In re (1970) 3 King 316 U.S. 543 L.Ed. ... supra,] [86 15, 226, 983].) 237 474 P.2d In Cal.3d Cal.Rptr. light purposes [90 scheme a reviewing and a statute or an overall statutory history particular by invalidating court correct a invidious discriminatory classification to those whom the statutory Legislature and thus exemption extending benefits Court, (Hayes supra, excluded.” v. 6 Cal.3d at unconstitutionally Superior 224, added.)50 italics later, Court (1973) Sykes

Two in v. 9 Cal.3d 83 Superior years [106 786, 90], we Hayes Superior followed v. 507 P.2d Cal.Rptr. quoted Court, 216, supra, 6 Cal.3d extended to those who estab unanimously a a writ the afforded statutory lish to retrial same right by way protections (Sykes those who establish a to retrial other v. legal right processes. Court, Then, In re 92-93.) Superior supra, Kapperman 9 Cal.3d at pp. 97, 657], extended a (1974) 11 Cal.3d 542 522 P.2d Cal.Rptr. credit” to before the effec those statutory right “presentence imprisoned tive date of the intent Legislature’s legislation, despite expressed that date. In so reforming confine the benefit those after imprisoned Court, 6 Hayes Superior supra, statute we and followed v. again quoted 216, Cal.3d our conviction that such a “correction” was expressed (In re Kapperman, supra, “consistent with intent.” 11 probable legislative 550.) Cal.3d at p. 50Thereafter, 107, Hayes (1966) court wrote: “See Baxstrom v. Herold 115 [15 620, 625-626, civilly [extending 86 S.Ct. to those committed to mental 760] sentence, awaiting statutory right jury granted expiration penal institution and of a a trial 313, persons generally]; People (1971) v. Smith civilly committed ... 5 Cal.3d 319 [96 13, Cal.Rptr. [unanimously extending Authority of the Youth 486 P.2d to wards 1213] statutory imposed on ward convicted of a criminal offense the same term of commitment a Com.[, Quong supra, court]; Ham Wah Co. v. Industrial Acc. juvenile who is committed in ] ante, 26, 41, ; (1964) . . . but see In re Trummer 184 pp. Cal. 60 [discussed 625]. [extending statutory right jury Cal.2d trial on Cal.Rptr. 388 P.2d 177] situated, similarly asserting generally

issue of lacks persons addiction all but Court, (Hayes Superior 6 Cal.3d at authority to so ‘rewrite’ italics statutes].” added.) 177], In In re Trummer we asserted Cal.Rptr. 60 Cal.2d 388 P.2d “Ordinarily in dictum that we have neither followed nor cited: in cases where substantive right equal Legislature has made an protection is involved and has been denied because the classification, cases unreasonable the entire statute has been invalidated. such [Citation.] noted, As presume we cannot to rewrite the law to make the classification a valid one. . . .” elsewhere, {Ibid.) the Trummer court reformed the statute. despite language, explained this As state, Court, courts, and the Supreme the United States the lower federal the courts of this states, have all retreated from the view that a court is powerless, courts of our sister situations, appropriate unconstitutionally underinclusive in to “rewrite” statutes otherwise order to save them. “rewrite” a a court to above, authority we reaffirmed noted As for underinclusion Arp, avoid invalidity in order to statute ante, decided 641-643.) after we (See Shortly et pp. seq. Cal.3d in Fenske v. Board relied on decision the Court of Appeal Arp, supra, to extend Cal.App.3d Administration under otherwise unconstitutional benefits statute retirement disability inval- extension rather than The court reasoned that clause. protection equal (Id. 597- intent. was consistent with Legislature’s most idation Mosk, we followed Justice in a unanimous opinion Most recently, ante, 632-636, and court cases discussed pages cases the high these the we found “invalid” under equal two statutes that reformed benefits Wilson, 1009, 1026.) Cal.4th Monte 1 (Del clause. v. supra, protection veterans’ state granted and Veterans Code sections 890 980 Military benefits, were or residents but those benefits to veterans who natives limited selecting of into service. In of California at the time their active entry invalidation, the of the extended benefits reformation over we judicially i.e., who those had been excluded the by Legislature, statutes those who into time of their entry were not natives or residents of California the the were active service. Cal.4th at In so doing “guided Westcott, 443 (Ibid., intent of the to aid veterans.” citing supra, Legislature 382, Welsh, 333, 393], and U.S. 361 U.S. 89 L.Ed.2d 398 supra, [26 [61 L.Ed.308, Harlan, J.).) (conc. of opn. 330-331] Wilson, 1 v. supra,

Amicus curiae for asserts that Del Monte respondent Welsh, et Cal.4th like U.S. 361 seq. Harlan, is (conc. J.), its of progeny, opn. predecessors

330-338] First, curiae the in two amicus from case distinguishable present respects. asserts, easily in cases “the constitutional flaw was equal protection claims, Moreover, (Italics added.) remedied inclusion.” amicus curiae those decisions cases that have expanded “are of a number of representative when the are expansion available government programs only options a number of destruction. All cases where present large these situations if have relied on the existence of a and would suffer injury people program were abandoned.” program first curiae suggests asserted distinction is Amicus unpersuasive. on the ground cases are protection/underinclusion distinguishable equal under in kind from the reformation extension different remedy consideration because cases not involve “rewriting” here extension do his concurring statutes. Justice Harlan undermined this argument opinion Welsh, 332-333], when U.S. at L.Ed.2d at pages page extension, he . . that “the . remedial is more acknowledged operation [of] to a (See than also id. at fn. 17 analogous graft amputation.” pp. L.Ed.2d at extension as “amendment [characterizing L.Ed.2d at expanding scope legislation”], pp. 331-332] Harlan, (conc. extension as a [characterizing “building upon” opn. statute] J.).) We amicus curiae’s distinction in similarly rejected proposed Arp, 407-408, Cal.3d at in which we supra, pages candidly recognized Indeed, extension is with of statutes. synonymous examination of rewriting the cases confirms this amicus curiae’s In each point disproves theory. above, numerous extension cases discussed a court rendered deci sion that reformed statute within its reach that effectively by including which the enacting sometimes body implicitly—and expressly—excluded. decisions, of the many reformation not altered only operative language increased, enactments but also question, potentially dramatically, state’s financial burden the class of entitled to receive by expanding persons (See benefits. 28 Clev. St. L.Rev. at Ginsburg, supra, [noting federal estimated cost of social statute in government extending security $20 to be Weinberger Wiesenfeld, supra, million per year].) Amicus curiae is correct that many cases equal protection/extension involve situations in which invalidation to “a would cause injury large Indeed, number of this is a consideration that often people.” persuasive influences a court’s assessment of whether the would a enacting body prefer But, reformed version of a statute over of to invalidation the statute. contrary amicus curiae’s there is no reason the absence of suggestion, this why consideration should reformation in particular cases preclude appropriate context, outside the protection/underinclusion so as equal long (here, electorate) discern from other factors that the would Legislature have intended reformation over invalidation.

In one cases are from the respect, protection equal distinguishable distinction, however, The litigation. does not assist amicus curiae or present interveners for The in respondent. equal cases which courts have protection “extended” statutes effectuate broad legislative policy judgments granting class, benefits to a named while other to declining respect policy judgments words, those to improperly limiting benefits the named class. other these cases reflect a limited encroachment into the judicial Legislature’s policy- domain, to making the extent elevate one they “major” policy related, veterans) judgment benefits to some over a “minor” (e.g., granting benefits). certain veterans from As amicus policy judgment (e.g., excluding curiae for courts that this respondent suggests, have assumed apparently limited encroachment into the domain is in many legislative policy justified equal protection/underinclusion cases on akin to grounds estoppel—i.e., of who on the existence “relied persons necessary prevent injury Assuming suffer if the were abandoned.” and would injury program program in the equal is justified permissible such limited judicial policymaking context, conduct not believe such judicial we do protection/underinclusion outside context. justified proper caveat, decisions are persua- we the equal protection

With this conclude that, with the other in of combination “rewriting” sive examples above, that a court cases discussed they support proposition of categories cases, constitutionality. a statute to its preserve “rewrite” inmay, appropriate statutes in to “rewrite” authority Cases courts lack broadly asserting C. under the against them Constitution preserve invalidity order curiae and interveners on behalf respon- As noted amicus previously, to make law lack to reform a statute in order dent assert we authority sister-state, court, and California with the consistent Constitution. high B.) IV. A. & refute that cases discussed above (pt. amply immediately below, distinguish assertion. As we those decisions also serve explain behalf relied curiae and interveners on numerous cases amicus (and court) that a court in which we have stated high broadly respondent, constitutionality. to “rewrite” a statute even to its authority preserve lacks note, one our As interveners amicus curiae on behalf respondent Metromedia, City Inc. v. San most recent assertions this was regard limits, however, are Cal.3d in which we said: “There Diego, supra, As of a court to construction. through judicial save a statute ability 42, 486 P.2d in Blair v. 5 Cal.3d 258 Pitchess explained 1206], , exercise its 45 A.L.R.3d court cannot . . . “[t]his insert in the statute. If this court were to power rewrite the interpret, to make it statute all or . any . . qualifying provisions [required written, constitutional], it but would in no sense be the statute interpreting intent. legislative would be statute in accord with rewriting presumed ’ Seaboard (P. is a function.” That not judicial quoting 882]; (1931) v. P.2d see Flood Corp. Shay 214 Cal. Acceptance 369 [5 (Metro- v. Riggs Cal.Rptr. Cal.App.3d 573].” media, 187.) San Cal.3d Interveners and City Inc. v. Diego, supra, p. on behalf this guided by amicus curiae assert should respondents have cases conclude we no and similar statements numerous other to reform a it to constitu statute in order to and conform authority preserve tional requirements. examination of cited interveners and amicus

Close the numerous cases by reveals, however, curiae on behalf of that with one respondent antique the decisions all are from federal and state exception, distinguishable ante, cases cited IV. A. and B. Most involved in which situations part reformation was under the standard articulated inappropriate because today, it was not reform the statutes a manner that effectuated possible closely articulated The policy judgments clearly by Legislature enacting body. cases are on a involved remaining some distinguishable variety grounds: all; no constitutional others did not involve reformation at infirmity; some of the decisions and authority affirmatively support power to reform in order to courts preserve constitutionality.

Metromedia, Inc. v. San City Diego, Cal.3d falls into supra, first of San enacted an ordinance that banned category. City Diego erection of off-site billboards. After the court held the ordinance superior Amendment, (Metromedia, unconstitutional under the First we reversed. Inc. San 26 Cal.3d 848 610 P.2d City Diego (Metromedia I).) The United States Court in turn reversed our Supreme decision, extent the ordinance banned noncommercial holding billboards, (Metromedia, it violated the First Amendment. Inc. v. San Diego, 490. court did not declare the Significantly, high unenforceable, ordinance but instead remanded to our court to consider an law, i.e., issue of state whether the ordinance should be ... “sustain[ed] (Id. its reach to commercial fn. 26 L.Ed.2d at limiting speech.” p. 824].) We construed the court’s order as us to determine high requiring “whether the of the ordinance could be saved constitutionality by limiting construction of its terms or severance of unconstitutional provi (Metromedia, sions from the balance of the enactment” Inc. v. San City of (Metromedia III)), Cal.3d at Diego, supra, proceeded address those issues. (and

We our discussion with the inter began statement above quoted veners and amicus curiae on behalf of to the effect that we may respondent), not, in the exercise of our consis or construe a statute power interpret constitution, III, (Metromedia with the tently “rewrite” it. 32 Cal.3d at Thereafter, we stressed that the intent of the ordinance drafters was to ban both commercial and noncommercial off-site billboards. We stated: however, “It does not that the intended to limit its ban to appear, city which billboards carried commercial To the the messages. contrary, city’s (Ibid., concern was not with the italics but with the structure.” message Council, added.) We found it “clear that the San the Diego City enacting (id. ordinance in intended to include noncommercial billboards” question, 189), but noted that could not be effect under purpose given high (Ibid.) authority.

655 its limiting the ordinance Diego of San reformation Any judicial in a rewriting have required billboards would to commercial coverage existence of physical the concern—the that ignored city’s principal manner for substituted that expressed it would have off-site billboards—and all ordinance, i.e., the of the inconsistent with rest an intention patently concern such a reformed As we commercial billboards. explained, to ban off-site only of the the legislative purpose would not have effectuated closely ordinance ordinance, depend ordinance would “the of such because effect reformed] [a to billboard purchase space to which are persons willing on the extent III, 190), 32 Cal.3d at (Metromedia advertising” noncommercial billboards, or that number of no assurance a substantial and “it would offer removed, billboard, of new or that the erection would be any particular that (Ibid.) concluded the city’s “legis be inhibited.” We billboards would bans most an ordinance which be better served by lative purpose one which draws a distinction than judicially off-site billboards reformed] [a (Id. the content of billboard’s message.” based on III, reformation Metromedia was thus a case which in a manner the ordinance was It was to reform inappropriate: impossible the local articulated by that effectuated closely policy judgments clearly legislature. curiae interveners one of cases amicus

All but cited remaining cases, of the many on behalf of are also distinguishable. respondent body’s judg- reformation to effectuate closely enacting policy designed intent incon- body’s ments was because the was impossible enacting plainly of the enactment.51In some sistent with or reformed construction saving cases, the enacting body’s to effectuate reformation designed closely Superior (1986) 51See Mills Court Cal.Rptr. v. P.2d Cal.3d 957-959 [232 (term “objection” mere because efforts” be to mean 211] “reasonable cannot construed Superior Rockwell v. Court terms); Legislature equate intent not the two demonstrated (1976) (declining invitation rewrite Cal.Rptr. 18 Cal.3d 556 P.2d 1101] contrary to the manifest penalty death statutes “in manner which have shown would Supervisors intent”); (1920) Mordecai v. Board P. 183 Cal. 40] operation (declining in a . . . act to reform statute manner “would extend counties, its although they has shall not come within legislature expressly said [certain] Ill, City Angeles (1917) P. Los v. Lewis operation”); 390] 175 Cal. 780-783 [167 “legislature (declining “distinctly contrary” to reform statute in manner scheme Mahoney (1901) Estate 133 Cal. deliberately advisedly passed”); formulated apparent purpose (declining “contrary or sever to the P. reform statute 389] Estate Johnson legislature”), Cal. 532 part grounds by overruled other McLaughlin Superior 424)]; Court Cal.App.3d P. Legisla (declining to inconsistent with “qualifying provision” read into statute a intent and constitutional process principles). ture’s due apparent 656 was judgments because the intent

policy impossible enacting was body’s unascertainable.52

Other cases cited interveners and amicus curiae on behalf of respon- dent illustrate another limitation on a court’s to reform important authority statutes: concern they situations which crucial were not policy judgments articulated clearly and in which it was thus enacting body, impossible to reform unconstitutional enactments because so would have doing required Pitchess, court to substitute or render In Blair v. policy judgments. 258, 5 Cal.3d sued to example, enforcement of the plaintiffs enjoin law, state’s “claim and (former a detailed delivery” scheme Code statutory Proc., 509-521, Civ. 1872) enacted under which the in an action plaintiff §§ bond, fee, to recover could possession a a a property post pay require defendant, law enforcement officer to seize from the all property before adjudication claim. We found the underlying property scheme so infected with both wholly (unreasonable Fourth Amendment search and seizure) (seizure and Fifth Amendment without due property process that, law) concluded, infirmities the statutes could not be salvaged: “[I]n order to create a constitutional there prejudgment replevin remedy, must be for a determination of provision cause probable and for a by magistrate seizure, hearing prior any in those few except instances where important state or creditor interests justify summary No such can process. safeguards 521; reasonable construction be by any found in sections 509 nor do through those sections clue as provide any to which state or creditor interests are sufficiently to warrant important we are summary procedures. Consequently, compelled invalidate the statute in its and await a entirety Pitchess, (Blair 283, v. 5 redrafting.” added.) Cal.3d at italics scheme, Thereafter the overhauled Legislature scores of making changes Proc., (See to our 511.101-514.040.)53 decision. Code response Civ. §§ Communications, City 52See Lesher 531, Inc. v. (1990) Walnut Creek 52 Cal.3d 541-544 1, (no measure, Cal.Rptr. 802 P.2d zoning [277 evidence that voters intended local 317] ordinance, amendment; general plan hence court could not construe ordinance to amend 860, Municipal general (1971) Dillon v. Court plan); Cal.Rptr. 4 Cal.3d 871 484 P.2d (declining to reform barring parade permit, noting city may local ordinance without 945] have intended to improper denying allow local authorities permit); exercise discretion in People Duffy (1947) Riggs (same); v. Flood v. Cal.App.2d Supp. P.2d 876] (1978) reformation, Cal.App.3d Cal.Rptr. (declining proposed which 573] conjecture” intent). was based on concerning legislative “sheer 53A number of the cases cited respondent interveners and amicus curiae for are akin to Pitchess, supra, Blair v. (See Acceptance Corp. Shay, supra, Seaboard 5 Cal.3d 258. v. [listing constitutional]; Cal. changes required five substantial to render statute King In re 3 Cal.3d 474 P.2d of statute 983] [reformation preserve rewriting”]; Bayscene Nego constitutionality Resident require would “wholesale Bayscene tiators Mobilehome Park Cal.App.4th Cal.Rptr.2d 134 [18 preserve binding [reformation constitutionality of local ordinance’s invalid arbitration

657 are distin of respondent on behalf interveners cited by cases Still other infirmity, no constitutional involved they ground: another yet guishable i.e., under herein, the conditions addressed the issue did not pose and hence constitutiona its order to preserve in reform an enactment a court may which supra, Coupe, Ford V-8 v. One 1940 Indeed, in People as we implied lity.54 enactment that an V-8 (One Coupe), Ford 1940 prospect 471 36 Cal.2d factor that is a crucial and unenforceable unconstitutional declared might mandates, refor of, situations in in favor appropriate militates we Coupe, supra, Ford V-8 In One 1940 specifically an enactment. mation of us from issue before construction statutory distinguished simple case, in which an “excep in another posed reformation question statutory due process prob constitutional to avoid into the statute” tion” was “read same in the 475-476.) declined to engage We at lems. Cal.2d pp. “no because V-8 Coupe, supra, precisely One Ford 1940 reformation (Id. at p. facts of that case. on the were presented obstacles” constitutional 476.)55 actually on behalf of respondent interveners two cases cited

Finally, view.56 not their and hence do support to be hold reformation appropriate, Sutherland, Statutory 2A vein, reliance on interveners’ the same we question v. Spiritual Psychic Science Church rewriting”]; require see also provision would “wholesale 225, 501, ban on (1985) P.2d Cal.Rptr. 1119] [local 703 City Cal.3d 520 [217 39 Azuza 661, essence”].) legislative intent post, page when fortune-telling explain As we “invalid in its clear, impermissi is not that effectuates that choice judgments is a revision regarding policy removes. more words than it merely requires it insertion of ble because 460, 182, P.2d (1977) Cal.Rptr. 561 Solberg Superior Cal.3d v. Court 19 198 54See 677]; 471, (1950) P.2d 1148]; Coupe 36 Cal.2d 475-476 People One Ford V-8 v. 1940 60, 962]; Keys Hopper v. (1936) P.2d Corp. 7 Cal.2d 67-68 [59 Anderson v. I.M. Jameson 467, (1891) 488, 1017]; (1907) City Cal. P. Eureka v. 89 152 Cal. 495 [92 Diaz 1193, 305]; Cal.Rptr. 961]; (1985) Cal.App.3d 166 1202 [213 Carroll v. State Bar P. 109, (1984) Cal.Rptr. Haney Cal.App.3d People 579]. 115 [202 v. (1979) Cal.Rptr. Long Valley System 25 Cal.3d 339 [158 Creek Stream 55In re Waters of reformation, construc 350, involve but similarly distinguishable. It did not P.2d is 656] issue.” In constitutional unnecessary the resolution of a substantial of a statute to “render tion authority board broad Legislature grant the state water recognized intended to that case board from (id. 348-349), precluding statutory provisions construed the pp. but 350, (Id. Similarly, fn. rights.” 358 & extinguishing completely riparian “future 529, (1966) Cal.2d Mulkey Reitman reformation. other cited cases did not involve mechanically inability of the court to Cal.Rptr. 413 P.2d concerned the 543-545 [50 825] Blaney 30 Cal.2d In re aspects of a statewide initiative. sever unconstitutional distinguishable. P.2d is likewise 653-656 [184 648-649, Eller, ante, how the Cal.App.3d illustrates explained pages 56As III, proposition with the compatible approach set out in Metromedia Cal.3d People v. Skinner Similarly, dictum in proper in a case. appropriate that a reformation is 752], will that a court P.2d to the effect 39 Cal.3d 775 [217 court’s light to the unambiguous language,” must be read to rewrite . . . “not undertake (b), by section subdivision case to an amendment of Penal Code decision reform drafting oversight in initiative apparent an replacing the word “and” with “or” to correct an Aids, 47.38, (5th 1992) ed. Construction Intrinsic section 291. page cited rather than defeats the of authority strongly judicial supports propriety that, situations, It in or reformation. asserts courts insert add appropriate may (ibid,, omitted) words “to fn. and that prevent unconstitutionality” “[a] of the elimination or cases of words in a majority permit disregarding or “the of one word if out statute” substitution for another to necessary carry 47.37, (Id., the intent or manifested express clearly meaning.” §§ 283, 47.36, Indeed, omitted.) fn. the cited on which inter- p. p. page veners contains the some courts have been hesitant “Although rely following; words, the supply insert better that a court the practice requires enforce legislative intent or where it is The statutory meaning clearly manifested. inclusion words to clear the intent or is in necessary expression meaning of of aid The denial the to insert words when the legislative authority. power of of intent or is clear is more the meaning usurpation legislative power (Id., because the result can be the destruction the legislative purpose.” 47.38, added, omitted.) italics fn. § above,

weAs one case cited interveners and acknowledged by antique But, amicus curiae on behalf of their view. respondent supports explained below, have, it also serves to illustrate courts in the why intervening century, reformation in order cautiously recognized propriety pre- serve of statutes. constitutionality Cal. P. an action

People Perry (Perry) was by Davidson, one who was in November 1887 Governor Water- appointed man to be a member of the Board of Health of the of San City County Francisco. Davidson sued who had been seven months Perry, appointed Governor, earlier to the same office the former Bartlett. The question term, was whether the office carried a fixed or whether the posed appointed had, holder served at the The state Constitution Governor. pleasure term, since not to set granted Legislature authority exceeding 113-114.) four for Never- such offices. 79 Cal. at years, (Perry, supra, pp. theless, (Id. set the office term at five Legislature years. pp. 112-113.) court, case, with four in the held the clause only justices participating statute the term at five unconstitutional. It fixing years Perry’s rejected term, and that the statute be reformed to set out a

suggestion four-year law, concluded that because held “no term has been declared . . . [Perry] thereby preserve constitutionality consistently measure intent. its with the electorate’s (See 775-776, errors].) drafting also 39 Cal.3d at and cases cited correction of [similar Indeed, observes, Skinner, supra, petitioners as intervener on behalf of Cal.3d implicitly supports authority rather than to reform statutes. defeats of courts title valid.” [Davidson’s] at the governor, pleasure [his office] conclusion, the court 114.) this reaching Cal. at (Perry, statute, of a that a clause know of holding no precedent explained: “[W]e unconstitutional, order to meaning be changed enacted is which as as the legislature it cannot when admittedly operate it some give operation, law, would, us, not merely be making This it seems intended. [<][] Cal. at (Perry, supra, excess of authority.” an correcting in order the statute reluctance reform Perry court’s Although of the with the day was consistent constitutionality jurisprudence its preserve errors in criminal which, and (in nonprejudicial for common example, conclude Perry’s we rise to reversals judgments), litigation regularly gave role reformation view of the permissible judicial regarding 19th century Indeed, in today. unconstitutional is dubious authority otherwise statutes to invade the the court’s reluctance it is professed hindsight, apparent scheme more violence the actually legislative domain did far Sutherland, 2A Con- (See Statutory than the would reformation. proposed ante, 291, struction, 658.) The Legislature at §47.38, supra, quoted p. many years for as intended to establish an office of fixed term lasting plainly the statute to as the Constitution allowed. The court’s refusal to reform Perry clear frustrated the provide Legislature’s for fixed term four-year wholly 641-653, ante, Moreover, and at the intent. as explained, pages principal the law this court over result in is inconsistent with the case Perry past reasons, interveners that two For these with although agree decades. afford that case their we decline to Perry, supra, any supports position, weight. of the holdings we do not the otherwise

Although question analysis for relied on amicus and interveners on behalf of respondent, cases curiae cited statements from reasons set out above we conclude various III, (to successors 32 and its supra, predecessors Metromedia Cal.3d its effect that a court never “rewrite” statute even may preserve Moreover, are dicta.57 as overbroad constitutionality), distinguishable B.), above IV. A. we—and the court—have explained expressly & (pt. high statements in a contradicted and those overbroad implicitly repudiated not, not, high 57There are also numerous court it will cases which has stated preserve constitutionality. example, quoted passage an oft reform an enactment even to its For (1876) (2 Otto) (Reese), states: United States v. Reese U.S. 214 L.Ed. “The [23 92 determined, is, question penal into a . to be introduce of limitation . . whether we can words would, when, This specific, general only. it is . . . expressed, statute so as to make it [1. extent, government. judicial legislative department to some . . . substitute law, not enforce an To limit this statute in the manner now asked would be make a new also, (Id. 566]; Cong e.g., old Yu part duty.” one. This is no of our L.Ed. at see 1059, 1067-1068, 619]; (1926) Eng 46 S.Ct. Trinidad L.Ed. v. U.S. 519-520 [70 have high decisions in which we and number of substantial reformed—i.e., of constitu- to avoid various types rewritten—enactments tional infirmities. and standards of, for, Summary: propriety

D. reformation of statutes ante, IV. discussed court and California cases part

In all of high B., to dictum in cases is the same. Contrary A. and the underlying principle III, our and consistent with like Metromedia 32 Cal.3d supra, page reform—i.e., 407, a court may supra, Cal.3d at Arp, page statement under the it invalidation “rewrite”—a statute in order preserve against 904-905, 39, 60, 88 S.Ct. fn. 18 L.Ed.2d Marchetti v. United States 390 U.S. 697].) (e.g., Virginia v. American or similar statements containing These and other cases the same Assn., 796]; Wyoming Oklahoma L.Ed.2d v. Booksellers 484 U.S. 397 [98 1, 26, 789]), including those cited S.Ct. II, [Thornburgh Employees page F.2d at the Ninth Circuit in Service Gynecologists L.Ed.2d College & 476 U.S. 764 [90 American Obstetricians of 779, 795-796, 2169]; U.S. fn. 27 v. Jackson 390 [20 106 S.Ct. United States (2d 148-149, 1209]; Babylon Cir. Advertising Co. v. Town 88 S.Ct. National 551, 557], grounds on which 1990) on one or more of the same distinguishable F.2d are 900 frequently expressed distinguishable, are or on the additional interveners’ state cases to) (or or authority reform state local courts are reluctant to lack basis that the federal however, itself, distinguishable. is not so enactments. Reese a inspectors Two prosecution under a federal statute. Reese concerned a criminal Gamer, “William a citizen Kentucky municipal accept refused to the ballot of election had 563].) (Otto) (92 p. The p. at L.Ed. at the United States of African descent.” U.S. affirmed, indictment, high to the and the court upheld circuit court the defendants’ demurrers unconstitutional, Congress’s power to enforce the as outside concluding the statute was an legislation.” broadly read the statute as by “appropriate Fifteenth The court Amendment Fifteenth Amendment and by Congress go beyond authority to its conferred the attempt ground against on the of race. conduct unrelated to discrimination voters criminalize authority “introduce words of Contrary that it lacked to the Reese court’s determination when, only” expressed, general specific, make it it is penal limitation into a statute so as to has, decades, 566]), expressly p. high past in the two p. U.S. at L.Ed. at the court ante, Moreover, 638-641.) (See contrary to recognized authority precisely to do that. its legislature, would of the it professed province reluctance to invade the the Reese court’s act, thereby insulate the defend- voting decision to appear that the court’s invalidate (See thereunder, greater legislative domain. prosecution from was a far intrusion into ants 47.38, ante, Sutherland, Construction, In p. Statutory supra, quoted 2A § conclusion, required expressly confine plain relatively minor reformation it seems that respectful far more scope only discrimination would have been of the statute cover race Hunt, J.) (dis. (See opn. of Congress’s U.S. at L.Ed. at intent. statute].) scope [legislative history disclosed intent to so confine Reese, (Otto) States v. For these reasons we conclude that United 105, 115, 563, 565-566], is People Perry, supra, Cal. like our own decision in L.Ed. has, 1970, reformed—i.e., rewritten—enact- authority today. high dubious since cases, and unani- expressly it has constitutionality in numerous preserve ments their mously authority to do so. affirmed its constitutional (i) it Constitution, possible can with confidence when we say judgments effectuates closely policy in a manner reform the statute would (ii) the enacting body enacting body, articulated clearly By of the statute. to invalidation the reformed construction have preferred factors, steer clear of “judicial policymaking” these courts may applying reformation, on encroaching avoid and thereby of statutory the guise (See doctrine. of powers in violation separation function legislative 1; id.., VI, IV, Const., l.)58 art. Cal. art. § § or to effectuate the Legislature’s designed reformation articulating intent, disturb as little as that would courts search for phrasing

electorate’s however, time, enacted. At the same of the statutes as language possible words involved in a reforma- on the number proposed we focus not only As a tion, change. general of the proposed quality more important, but terms that matter, for a court to reform by supplying it is impermissible contrast, when policy or electorate’s choices.59 By the Legislature’s disserve clear, choice is electorate’s) intent (or the regarding policy it because choice is not merely revision that effectuates that impermissible removes. insertion of more words than it requires St. 23 Clev. and to Justice Ginsburg,

In summary, paraphrase the power courts legitimately employ L.Rev. at we conclude page articulated by clearly to reform in order to effectuate policy judgments electorate, more would be far when a statute invalidating Legislature And, authority . . . ultimate of the electorate’s will. “of course destructive branches remains with the political to recast or the law in question scrap (Ibid.) [and, case, as in this the electorate].” constitutionality is barred concurring rewriting preserve opinion 58JusticeMosk’s asserts by implication or enacting body expressly unless the by separation powers the doctrine Mosk, J., 674.) (Cone. post, As rewriting. opn. of “specifically such authorize^]” above, Courts have declined explained the establish a somewhat different standard: cases (i)

rewrite, it preserve constitutionality, they can conclude with confidence even to unless clearly judgments closely policy effectuates possible is to reform the statute in a manner that (ii) such a by enacting body preferred would have enacting body, articulated the the reformed the of the statute. version of statute invalidation ante, 641-653), (cited none prior pages In view of the this court and described decisions of decided, to read incorrectly analyzed we are inclined of which Justice Mosk claims was view, the in our need concurring opinion simply emphasizing, appropriately Justice Mosk’s herein, scrutiny regarding part and careful the second of the traditional test embraced close namely, enacting body given reformed construction preferred whether the would have invalidation. ante, 652-653, many cases effectuate pages equal protection 59Asobserved of the extension class, declining to legislative granting while policy judgments broad benefits to a named class, and respect policy judgments improperly limiting those benefits to the named other judgment. policy minor thereby major legislative policy judgment elevate a over a related protection/ Again, assuming judicial proper equal is in the policymaking this form of limited context, that context. judicial improper conduct is outside underinclusion we conclude such Before the reformation this deciding posed proceed- specific question we reformation of initiative statutes. briefly generally address ing, V. Reformation Initiative Statutes Interveners on behalf of assert courts are from respondent precluded statutes, because action initiative such would free reforming judicial operate amendment of procedural legislative from protections apply behalf, their by initiative statutes. Petitioners and intervener on joined view, a court should advance dissenting justices today, asserting opposite statutes, those that to reform initiative especially willing especially We view. concern elections. neither accept statutes, observe that initiative Interveners behalf respondents “[f]or worse meant to in stone. better or ... are be set The Legislature from them without back to the unless the prohibited amending going people” Const., II, (See (c) initiative art. subd. provides otherwise. Cal. [The § amend or an initiative statute another statute that Legislature “may repeal by becomes effective when the electors unless the initiative approved only by statute amendment or without their repeal approval.”].) Proposition permits “to amendment further its but allows such permits legislative purposes,” (a), Inter- only (§§ amendment a two-thirds vote. subd. veners on behalf of conclude that reformation respondent them, at issue tantamount and that statutes here is to an amendment of II, (c) action is article of the state such barred section subdivision Constitution.

We the view that courts are from initiative stat- reject barred reforming above, utes. As described we have substantial safe- recognized applied to ensure both that reformation effectuates guards any closely proposed electorate, articulated and that electorate policy judgments clearly have reformed over the constitu- would version statute preferred invalid nothing and unenforceable version. More tionally important, do of reformation would might by way impair Legislature’s authority II, Constitution, 10, (c) under article section subdivision California 85301(a) to amend or initiative as section or section repeal statutes such (b). 85303(a) and on do

Although respondent concerns raised interveners behalf of not that courts are from initiative justify reforming conclusion precluded statutes, those same militate view opposite petitioners points against i.e., courts be to reform willing and their should supporters, especially Granted, is to such statutes. we have said the initiative be power people’s (Raven and construed. jealously guarded liberally Deukmejian 336, 326, 1077].) no Cal.3d 801 P.2d But we perceive basis reformation principled general favoring judicial presumption such cases. Nor do we find Justice Baxter’s persuasive suggested “special” reformation of initiative that the favoring Legislature statutes presumption Baxter, J., (See be to dislike. conc. & may expected post, pp. dis. opn. cases, 686-687.) We conclude that in all reformation should be tested the standard set out herein. objectively against

VI. Reformation 85301-85304 of Sections A. Preliminary observations regarding sections 85302 and 85304 matter,

As an initial we narrow of our As substantially scope inquiry. ante, 10, footnote suggested we view the federal courts’ decisions as reflect- an determination that ing unless the implied limitations on contributions to candidates set out in 85301(a), 85303(a) enforceable, sections (b) and are 85302, section which regulates contributions to political committees and would itself parties, remain unenforceable. We with agree that determina- tion, and defer our accordingly consideration of whether section 85302 may be reformed. We further confine the of our scope at the inquiry by determining,

threshold, that 85304, there is no basis for section reforming which estab lishes both intra- and above, inter-candidate transfer bans. As explained intra-candidate of section aspect which the courts found to constitute limitation, an unconstitutional spending is not at issue in this proceeding. ante, (See 619; Valeo, 617 & see generally, Buckley v. 424 U.S. L.Ed.2d 707-710].) above, As also explained inter-

candidate transfer ban aspect section which appears as operate limitation, a contribution was invalidated the federal court of appeals dual one of grounds, which was that the section is overbroad because it both and prohibits contributions, small large transferred and is thus “not ” drawn to avoid ‘closely of associational unnecessary abridgment freedoms’ Valeo, required by Buckley v. (Service II, Employees 691]. F.2d supra, 955 to the Contrary view of behalf, and petitioners intervener on their the federal court’s appeals analysis conclusion in this latter regard would not be undermined by reformation of the “fiscal year” measure of sections 85301 and hence section 85304 will remain as enacted and enjoined.60

We thus focus on whether 85301(a) 85303(a) sections (b) (regu- lating candidates) contributions to reformed a manner that renders them constitutional. petitioners 60Neither nor suggest intervener their behalf the inter-candidate transfer ban

aspect of section 85304 judicially should be reformed to avoid the perceived by overbreadth B. Whether it is sections 85301 and 85303 in a manner possible reform that articulated the electorate closely policy judgments clearly effectuates First, sections reflect three enjoined key policy judgments: a maximum sections establish dollar amount for contributions. particular Second, the sections at which regulate those contributions be pace may made. sections establish the to contribute and to Finally, implicitly rights a theoretical maximum amount of funds. A refor accept aggregate proper mation must effectuate each these closely policy judgments. above,

As noted the federal court broached the whether appeals question the sections be reformed or saved the word “fiscal” might by merely striking from the term “fiscal but declined to do so because that year,” would create an annual measure and hence lead to the same effect discriminatory per- We ceived unconstitutional. agree.

The federal court also considered the term “fiscal appeals striking year” because, it with the term “election but declined do so replacing cycle,” reasoned, it “we would be at a loss to know what the dollar amounts of the II, (Service 1321.) limitations should be.” Employees 955 F.2d Petitioners and intervener on their behalf eschew the “election cycle” court,61 the federal instead that approach suggested by appeals propose the statutes be reformed election” by inserting “per measure similar to (See 431(1)(A) in an federal statute. U.S.C. employed analogous § term ‘election’ means . general . . a . . . . . . elec- primary [“The [U [or] .”].) tion. . . conclude, however,

We that such a reformation would not effec- closely Granted, tuate articulated it policy judgments electorate. clearly would retain the maximum amounts for contributions established particular appeals grant request. appeals federal court. Nor would we such As the federal II, 1312, 1321, Employees in Service noted in another context F.2d “we would be distinguish at a loss to know adopted what. . . dollar amounts” should be between “small” herein, “large” explained preserve contributions. As reformation to the constitu when, alia, tionality permissible only of a statute is inter a court can conclude with confidence possible closely judgments that it is to reform the in a policy statute manner that effectuates clearly enacting body. statutory articulated Neither section 85304 nor the rest of the (nor 73) supporting Proposition suggests scheme the ballot materials the drafters or electorate considered, expressed any concerning, “large even much appropriate less intent contribu might legitimately applied tion” amount to section inter-candidate transfer 85304’s Accordingly, judicially ban. section 85304 not be reformed. observes, respondent assuming cycle” encompass As the term “election were defined to office, primary general both the election for an use that definition would frustrate apparent allowing purpose opportunity contributors an to contribute before both ante, (See primary general and the elections. fn. sections, it would least pacing and effectuate by requirement, of a when contributions are most arguably months closing campaign, would at the policy expense But it those important. promote judgments that could be the theoretical maximum amount of funds reducing aggregate contributed to and most candidates. accepted by although Specifically, maximum election” would maintain the theoretical generally62 “per approach of funds that contributed to accepted by amount could be and most aggregate races),63 (i.e., for with it would candidates offices terms two-year Assembly ante, (see 62) reduce fn. the theoretical aggregate maximum by percent could or amount of funds that be contributed for all offices accepted partisan (i.e., offices), with terms Senate races and most statewide and it four-year ante, (see 62) would reduce fn. maximum theoretical percent of funds that contributed aggregate amount could be or for if accepted many (i.e., not most offices with terms local four-year govern- most nonpartisan offices).64 ment

Intervener on behalf of these petitioners acknowledges consequences reformation, election” but insists this is never- proposed “per approach First, theless consistent with the intent. electorate’s on section focusing 85301(a), intervener behalf of section asserts the was not petitioners intended to “ensure contributors would be allowed to donate to the up $4,000 . . . maximum amounts allowed theoretically for offices four-year Rather, under the initiative’s fiscal year limits. ... the voters were prima- rily motivated a desire to restrict size of contributions to no particular 62The presented premised calculations herein are on the assumption, implicitly embraced respondent, amicus curiae and interveners for that the would statutes as enacted have allowed race, two periods two-year periods contribution for each and four contribution for each Yet, race, four-year three, two, there years etc. are at least not prior fiscal the election for office, five, four, the first two-year term of a years” and there are at least and “fiscal prior not matter, to the four-year Although, election for the first term of a practical office. as a it would only seem that those candidates who were not holders of elective office would benefit from fact, recognized this still it must aggregate the “theoretical maximum contribution” amounts discussed slightly aggregate herein understate true theoretical maximum amounts that would have permitted been in some cases under the statutes as enacted. enacted, example, 85301(a) 63For under section Assembly as a candidate for an seat could $2,000 $1,000 accept (i.e., solicit and totaling contributions from an per individual “fiscal Likewise, year”). the proposed “per 85301(a), under election” reformation of section a Assembly candidate for an seat accept could solicit from and contributions an individual $2,000 $1,000 $1,000 totaling (i.e., election). primary, for general for the 85301(a) enacted, seat, 64Under section a candidate for a a Senate candidate for a council, nonpartisan (e.g., local mayor, races) office supervisor solicit and accept could $4,000 (i.e., $1,000 contributions from totaling an individual per year”). But “fiscal under the proposed “per 85301(a), election” reformation of section candidate for Senate seat could $2,000 (i.e., $1,000 solicit accept totaling only contributions from an individual for the $1,000 primary, general election). Similarly, “per under the election” proposed 85301(a), reformation of section nonpartisan a candidate for local office could solicit and accept $1,000 election,” totaling an only contributions from individual “per which would effectively reduce contributions to that required. amount unless a runoff were $1,000 Second, . . . intervener on behalf of

more than cites petitioners of 68—a rival reform the corresponding provisions Proposition campaign that received a lesser number of affirmative votes at the same measure enacted, which, election at which 73 was and Proposition accordingly, (See remains to Limit v. Fair “inoperative.” Taxpayers Campaign Spending Gerken, Com., 771; 51 Cal.3d Pol. Practices 6 Cal.4th supra, 707, 720.) Intervener observes that under the election” refor- proposed “per 85301(a) 85303(a) (b), of sections and the maximum contribu- mation and tion to statewide or candidate would be the same as the any given amount set out in the of 68.65 Inter- corresponding provisions Proposition vener on behalf of concludes from this that the voters intended to petitioners enact the reduced theoretical maximum contribution amounts that aggregate 85301(a) would result under a election” of reformation sections and “per 85303(a) (b). and

As interveners and amicus curiae for and as Justice suggest, respondent shows, Baxter’s and of inter- concurring dissenting opinion argument First, vener for does not withstand scrutiny. assuming petitioners pur- that the electorate’s motivation was to restrict poses analysis “primary” contributions, the size of this affords no to particular ground presume the statute was not to what also purposefully designed accomplish precisely i.e., it would have done in individual or afford each institutional practice, contributor the and each candidate the opportunity give, opportunity a theoretical maximum amount of contributions—in other aggregate accept, words, $4,000, $10,000, $20,000, and under for a Senate candidate up 85301(a) 85303(a) (b), sections and and respectively.

Second, 68 is because the voters stated a Proposition inoperative prefer rival, (Gerken, ence for its 73. 6 Cal.4th Proposition fact that a of the electorate voted 68 and the lesser majority for Proposition cannot, maximum contribution amounts contained therein aggregate not, does the fact that a voted for 73 and negate greater majority Proposition Moreover, its more generous maximum contribution amounts. aggregate because the lower out in contribution limitations set aggregate Proposition 68 were established that also would have part package spending (see limitations and funds for matching partial public campaigns inoperative 85400-85405, 85500-85506, 68 and proposed by Prop. approved §§ deflated, 1988), electors June the contribution are to that extent amounts and hence not “transferable” to which bans Proposition specifically (See 85300.) public financing campaigns. § inoperative (proposed by Proposition approved 65Under section 85300 68 and electors 7, 1988)—the analog person June Proposition section 85301 of 73—contributions $1,000 general, special,

a candidate for a Senate per primary, seat would limited to special runoff election. We conclude a election” “per 85301(a) reformation sections 85303(a) (b) would not effectuate the closely right contributors to give, candidates to the theoretical maximum accept, amount aggregate of contributions the statutes as enacted. contemplated by Accordingly, decline reform the statutes the fashion advocated by petitioners and interveners on their behalf.

We also decline to revise the statutes in the manner Justice suggested by Baxter. He and the justices his joining and concurring dissenting opinion would reform the three statutes “to limit contributions campaign and loans to $1,000 candidates to no more than (for $2,500 (a)), (for subd. § $5,000 (a)) subd. (for (b)) subd. § multiplied § number of of the term years candidate, of office sought by races, to further partisan election’ incorporate ‘per mechanism so pacing that no more than one-half the total allowable amount be contributed to the prior election and primary no more than one-half of the total allowable amount bemay contributed between the election and the primary general (Conc. election.” Baxter, J., & dis. opn. post, at p.

Because no advocated or party a reformation anticipated similar to that Baxter, suggested Justice sought briefing the issues raised such asked, alia, reformation. Our letter inter “(i) whether it would be necessary or to reform possible the statutes in a manner that closely replicates total theoretical maximum contribution amounts that would have been allowed under enacted, the statutes as (ii) would it be necessary possible such a judicial reformation to retain a mechanism regulating pace contributions, similar to that in the existing statutes as enacted?”

The opponents of reformation—interveners and amicus curiae on behalf of respondent—answered that both objectives are but neither is necessary, possible without this court in extensive engaging rewriting the statutes or without its own imposing policy judgments of those reflected place in the statutes as enacted.

Petitioners, although not clearly addressing questions posed, signifi- cantly 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 it argued would be to reform improper the statutes in a manner that permits candidates to receive the theoretical

maximum amounts allowable under the statutes as enacted. It aggregate that its own election” would diminish acknowledged “per substan- approach maximum, the theoretical but asserted that is more theoretical tially problem real, than because most occurs toward the close of a fundraising campaign— i.e., Moreover, near the election intervener primary general stages. claimed, a reformation that the total theoretical maxi- attempts replicate mum contribution amounts that would have been allowed under aggregate enacted, the statutes as would “wholesale rewriting” require improper statutes, and would be event it would conflict because unnecessary any intent, with the voters’ which was to “restrict the size of primary particular contributions . . . .” brief of most supplemental respondent perhaps significant. Respon

dent reaffirmed its on the ultimate of whether the statutes neutrality question time, should be reformed. At the same it that if we do strongly suggested reform, we should do so in the manner and not in a suggested by petitioners, manner that to the theoretical maximum contri attempts replicate aggregate (i.e., the butions that would have been allowed under statutes as written the Justice Baxter’s because that would “in effect . . . raise approach) to contribution dollar amount above the level which voters were attempting $1,000, well over the and allow last-minute impose” lump-sum payments $2,500, $5,000 limitations, candidates and fiscal thus year benefiting per vein, who do not face this competitive supple primaries. respondent’s reformation, com mental brief asserted that repeatedly petitioners’ proposed (such Baxter) with a scheme as Justice that to pared proposed by attempts total contributions the amounts allowed under preserve campaign Propo sition ubest adheres to the scheme and the original statutory preserves added.) (Italics intent of the electorate.” also original repeatedly Respondent asserted that with a scheme that to petitioners’ attempts approach, compared total contributions in the amounts allowed under preserve campaign Propo (Italics sition is “closest to 73.” contemplated Proposition [that] added.)66 that would be Finally, although possible asserted it respondent administer a scheme that candidates to receive the theoretical aggre permits máximums that would have been allowed under the statutes as gate they enacted, such a scheme would be undesirable because it would be neither because, alia, administer nor uniform and it inter would be difficult simple there would be at for candidates least nine different contribution formulas for various offices. respondent’s position, question 66In view of stated Justice Baxter’s assertion that

“respondent suggested cycle”] approach has never that election . . . would be “modified [the (Conc. Baxter, J., improper.” opn. . . . & dis. words, curiae Baxter’s In other no amicus endorses Justice party approach.67 fore- briefing

We conclude the reasoning underlying supplemental Baxter. closes the extensive novel reformation Justice and proposed Indeed, mirror reformation is because it is the proposed impermissible it effectuate election” would image “per approach: Although closely a theoretical rights accept contribute policy protecting below, funds, it maximum amount of as would advance aggregate explained cases, in some doubling, policy expense quadrupling Moreover, maximum amount of contributions. in a particular significant elections, would no it thus category pacing regulation, allowing impose contributions barred the statutes as enacted. lump-sum Under Justice Baxter’s in the 12 before general months approach, election, Senate candidates races would allowed to receive partisan $4,000 individuals—$2,000 $2,000 from for the for the primary, general contrast, enacted, election. By under statutes as the same during period i.e., $2,000, $1,000 the same candidates would have been limited to during $1,000 the fiscal in which year is held and the fiscal primary during year which election is general held. under Justice Baxter’s Similarly, election, in the 12 approach, months before an candidates in nonpartisan terms—i.e., council, local contests for candidates in most 4-year mayoral, $4,000 races—would be supervisorial allowed receive from individ- contrast, enacted, uals at time. under the any Again, by during statutes $1,000 same (with same candidates period would have been limited to $1,000 possibility another event of a runoff election held a fiscal subsequent year). $1,000, $2,500, $5,000 and on contribution out in amounts set caps 85301(a) 85303(a)

sections and (b), and with the together mechanism pacing contributions fiscal were limiting intended to limit the year, obviously for opportunity at lump-sum contributions time a any during By campaign. amounts, and in some doubling cases those contribution quadrupling allowing substantial category candidates to solicit and those accept time, contributions sum at Justice lump any Baxter’s reforma- proposed tion would disserve the substantially electorate’s choices.68 policy concluded

Having that neither reformation is proposed permissible, need not decide whether the electorate would have either of them preferred argument, petitioners, behalf, 67At oral and to a lesser extent intervener on their Common Cause, agreed that under approach reformation Justice Baxter’s would be than “better no Neither, however, reformation all.” cycle” endorsed Justice “modified Baxter’s election approach. reason, 68For post, contrary this concurring to Justice dissenting opinion, Baxter’s Valeo, 691-692, Buckley pages case, distinguishable. unlike that observe, however, invalidation. We that affirmative so an is not response above, and Justice Baxter As noted self-evident petitioners suggest. election” reformation would stricter petitioners’ “per impose regulations enacted, assume, those in the than set out statutes as and we at least might that the electorate would have purposes analysis, preferred But, above, reformation over invalidation. as also noted Justice Baxter’s election “modified reformation would a scheme cycle” produce considerably more lenient than the statutes as enacted. We would be reluctant to extremely that the electorate have such a “half loaf’ presume might preferred compro- Indeed, over we find it mise invalidation. at least as that the electorate likely would to start anew in order to create a and coherent prefer comprehensive scheme, rather than settle for a makeshift and law that ill-fitting might future reform an illusion actually hamper campaign financing by creating full and reform had been achieved. we conclude complete Accordingly, determine that it would be with that the electorate impossible confidence would have the reformation preferred Justice Baxter over proposed by invalidation.69

VII. Conclusion to interveners and amicus Contrary curiae on behalf of respondent, doctrine but does not separation powers guides, invariably preclude, of statutes to Consistent with rewriting preserve constitutionality. doctrine, a court has to reform statutes them to authority by rewriting it (i) when can conclude with confidence that it is preserve constitutionality to reform the statute in a manner that effectuates possible closely policy (ii) judgments articulated clearly enacting body, enacting would body have such a reformed version of the statute to invali- preferred Indeed, dation of the statute. in an case it would be our appropriate duty Sutherland, (2A rewrite in order “to prevent unconstitutionality.” Statutory Construction, Aids, 47.38, above, Intrinsic 291.) As observed § “better that a court enforce intent or practice requires the legislative statutory where it is manifested. The of words to meaning clearly inclusion necessary clear of the intent or in of expression aid meaning legislative authority. The denial the power insert words when the intent or is clear is meaning of more the usurpation because the result can be the legislative power of of added; id., destruction (Ibid., the legislative purpose.” italics see also of 47.37, id., 283; 47.36, And, above, 277.) as also noted when § § (or clear, electorate’s) the intent choice is regarding policy one, advanced, frustrate, this properly legislative policy reformation and did not judgments. 85301(a) reformed, 69Having 85303(a) (b) concluded sections may and and not be we ante, ante, (See conclude section 85302 should not be reformed. and fn. is not because revision that effectuates that choice it merely impermissible of more than it insertion words removes. requires conclude, however, here,

We also that reformation is and inappropriate cannot be with the limitations on courts accomplished consistently by placed the We decline to reform separation powers doctrine. section of, because the federal and court’s conclusion analysis regarding, appeals that section would not be undermined reformation the “fiscal by year” turn, 85301(a) 85303(a) (b). measure of sections and In not and we 85301(a) 85303(a) (and, reform (b) sections and and we may accordingly, 85302) not reform section it is to do in because so a manner that impossible effectuates the electorate. closely policy judgments clearly articulated by The election” would allow and candidates to “per approach give, persons contrast, less than the electorate Justice accept, funding contemplated. By Baxter’s novel and “modified election would unsupported cycle” approach allow candidates more than the funds electorate and it would planned, remove regulation contributions for the non- any pace numerous partisan elections municipal state. Because nei- county throughout ther reformation would effectuate closely policy judgments clearly expressed electorate, it either follows that would intrude on the impermissibly functions policy-making (Cal. reserved and the Legislature people Const., IV, 1), art. neither hence reformation is permissible. § we the relief

Accordingly, deny requested petitioners. J.,

Werdegar, concurred.

MOSK, I concur in the judgment. petition J. rewrite, writ of mandate asks us in essentially certain to. requested suggested ways, initiative statute approved by people commonly referred to as Proposition 73. The court has determined that such relief must be denied.

I write I separately explain why join the disposition. Nongues (1857) 7 Douglass Cal. which was decided early days statehood but vital (see remains Raven v. today Deuhnejian 52 Cal.3d 1077]), 801 P.2d out set doctrine of separation under the powers California Constitution.1

“The . . . reside powers State they, primarily people; Constitution, our have all their delegated own the three powers depart- executive, and ments—legislative, in those judicial—except cases where 1The California “powers government legislative, Constitution declares that the State are executive, (Cal. Const., Ill, judicial” 3); and “legislative art. power the this State is § vested in Legislature the California which Assembly, consists of Senate the and but the have themselves

they exercised these or or powers, expressly, by necessary reserved the same to in implication, themselves”—as initiative and referen- far, then, dum—“to be exercised in the future. So as the have people exercised the in the legislative powers government formation of the State, Constitution of the their action is conclusive all the upon departments. reserved, But in all cases where not exercised and not all the legislative of the State is in power people vested the and the Legislature, all executive in the executive and power all the department, judicial power the judiciary.

“The three constitution, are great departments different in their essentially nature, Constitution, and and in the powers, means for each provided the by to enable each to its perform functions. These three appropriate departments all are equally to the existence of necessary very the government.

“The legislative is the creative element in power the and government, was exercised the in the partly by formation of the people Constitution. It is fundamental, primarily antecedent and original, [sz'c] and must be exer- cised before the other can have departments to do. Its anything exercise is condition precedent, and the exercise of the executive and the judicial functions laws, are conditions The subsequent. legislative makes the power then, made, after are so the they judiciary expounds and the executive 69-70, executes them.” (Nougues Douglass, 7 Cal. at italics original.) is, course, focus of this principal proceeding judicial power

under the California Constitution. The is the subsidiary object legislative power—whether exercised Legislature itself or people acting When, law, initiative or through referendum. “expounding” courts statute, undertake to construe a “ask they what the statute only means.” (Holmes, Collected Legal 207.) And Papers when consider they statute, were, ask question, they only what its words mean. For a as it a complete Within integration. its it is the scope, final and exclusive state- intent, ment legislative body its all and contem- superseding prior poraneous expressions not implications, those that are only directly but even those contrary that are consistent. more altogether accu- Perhaps it is the rately, enactment, final and exclusive body’s displacing could, would, all terms and conditions of whatever sort that have might (id.., people IV, reserve powers 1); to themselves of initiative and referendum” art. § (id., “supreme V, power 1); executive of this State is vested in the Governor” art. § “judicial power Court, courts, of this State is Supreme vested in the appeal, superior courts of (id., VI, 1); and, municipal courts” art. generally, “[p]ersons charged with the exercise § (id., Ill, of one power may 3). not exercise either of the others” art. §

673 is not to look meaning been To seek the a statute passed. simply up Rather, stitch the results. it is to definitions then dictionary together statute, words, its legal discern the sense of the and therefore in the its words. broader culture. a statute has no from Obviously, meaning apart the world are its words have no from in which Similarly, meaning they apart (1968) Co. Co. (Cf. Gas & E. v. G.W. Thomas etc. Drayage spoken. Pacific Cal.2d 37 442 P.2d “primi- Cal.Rptr. [rejecting 641] (fns. tive faith in the inherent and inherent of words” meaning potency omitted)].) Constitution, therefore,

Under the California the courts have no general statute, of the a to by virtue to rewrite even authority judicial power salvage (See, its would amount to validity. Rewriting Huening amendment. v. e.g., (1991) Eu 664].) Amendment is Cal.App.3d within the It is that of the courts. “If power legislative body. beyond “alteration,” the law is” in need of “it to be but the ought changed; power (Minor Wall.) 162, that (1874) (21 is not with us.” Happersett Waite, L.Ed. J.).) C. “The have (per no judges option bound, foot, matter. are hand the shackles of They statute.” [the] (Cardozo, (1931) 106.) Law and Their Literature is “to “province” law, (Luther not expound (1849) to make it.” et v. Borden al. U.S.

How.) J.).) L.Ed. C. Their “is (per Taney, authority 598-599] create, a an It only negative—never affirmative—force. cannot it cannot initiate, it cannot into put action kind any governmental policy .... any All can do is to or [they] Yes No to a or say or policy program part or that policy has been started someone else some program other branch of as the government”—such (Rodell, Nine Men legislative body. area, 11.) In this can do is to they approve disapprove— “[a]ll after are they asked to do so—a law (Ibid.)2 passed by” body. if the 7 members this

Plainly, court had to rewrite a general authority remarkable, statute—as the dissenters believe evidently in their and uncab- inable, of judicial activism—so display too would the state’s Court of that, Constitution, 2It follows a fortiori under the California general the courts have no obligation they Certainly, alter a statute. have not been made subservient body, as a valet to his They master. must they themselves construe the statute under review. If valid, find they invalid, not, it must so declare. they they must so If find They declare. it need not, and indeed spare legislative body must alter it in order to the chore of amendment. Thoughts In an Authority Repair Some on Judicial article entitled Unconstitutional Legislation Justice, 28 Clev. Judge, St. L.Rev. then Ginsburg agree now seems general the courts authority do not have “judicial to alter a But she accepts statute. some legislation” legitimate Moreover, apparently necessary. because she deems it It is not. she “ rejects evidently what she considers the ‘wooden that each notion branch must “be limited ’ ” (Id. powers exercise of the appropriate to its own department and no other.” mayWe not. 674 court with their justices, 789 140 commis-

Appeal superior judges (together referees), sioners and 623 court with their 170 municipal judges (together referees), (Judicial commissioners and 47 Council of justice judges Cal., (1994) xiii Ann. the total number of authorized Rep. [stating judicial 30, 1993]). as of June The enactment of a would not positions statute be the end of the but it would not render legislative process only beginning; Indeed, order but invite chaos. Such an outcome would be intolerable. only Rather, in no have we to alter a statute. we have consis- opinion purported maintained the obvious and distinction between tently significant interpret- a measure and in its words.3 ing making changes said, that, statute,

With that it is the courts be plain any given may authorized to make deletions specifically by legislative body along within the measure’s lines to an general clause pursuant express severability 643, (see, 892]), In re 30 Cal.2d e.g., Blaney P.2d or [184 even an (see, to similar effect implied provision Legislature v. Eu e.g., 492, (1991) 54 Cal.3d 535 1309]). 816 P.2d [286 Likewise, that, statute, it seems clear the courts any given may additions, authorized to make also specifically by legislative body along lines, and within the measure’s to what be called general might an pursuant clause,” or even an to similar express “attachability effect. implied provision 144.343, (See (6) (1994) Minn. Stat. subd. authorization in an [legislative § abortion notification statute for the courts to certain add notifi “[substitute if, as, cation and so provisions” allowing judicial bypass long original notification not are “ever provisions encompassing judicial bypass tempo order”].) or restrained or rarily permanently That is the enjoined by judicial core, sound, of Justice Harlan’s in Welsh v. teaching concurring opinion United States U.S. 333 398 90 S.Ct. Just as 1792]. courts,” the legislative body make a to the actual or may “grant power statute, them to an on a it “presumed,” permit perform “amputation” may do the same to allow them (Id. to effect a “graft.” pp. Harlan, (conc. L.Ed.2d at J.).)4 opn. 332-333] now to I am convinced we have Turning Proposition no general virtue our under the authority by California Constitution to power 3By way example: assume a requires filing statute that of certain documents the measure to mean 5 o’clock in the reasonably interpret o’clock. We could We afternoon. not, however, change could the words “5 o’clock” to “6 o’clock.” Welsh, that, passing 4I note in point concurring at one in his opinion in Justice Harlan stated: “Where a statute is defective because of underinclusion there exist two remedial may nullity alternatives: a court either declare it a and order that its benefits not extend to the benefit, coverage legislature or it extend the the statute to class that the intended to aggrieved Oklahoma, include those who are exclusion. Cf. Skinner v. 316 U.S. 535 [86 Bennett, (1942); L.Ed. Iowa-Des Moines National Bank 62 S.Ct. 1110] U.S. 239 (1931).” (Welsh States, L.Ed. v. United S.Ct. U.S. at 331], (conc. Harlan, J.).) L.Ed.2d at italics opn. added The italicized “remedial statute, rewrite the even I its am also convinced that we salvage validity. have not been authorized to alter the measure in specifically people face, On their all any ways of the various requested suggested. very additions and deletions are in conflict with or its lines. go beyond general The lead demonstrates the fact. I embrace its in this opinion analysis regard. conclusion, I because am of the view that we are without to authority alter in of the or I concur in Proposition any ways requested suggested, the judgment.

WERDEGAR, J., Concurring. join in Chief Justice Lucas’s lead fully I I write to opinion. separately of statutes emphasize rewriting to initiatives their salvage constitutional while within our validity, authority, is a task to be undertaken As Justice sparingly cautiously. Mosk points out, and as this court has often role in a recognized, judicial democratic laws, is society fundamentally not to write them. The interpret latter to the power belongs primarily branches of people political govern ment; the courts should exercise the in power only circum compelling stances, and where we can only be certain that our duty implement case, intent legislative believe, us to act. The requires I present is not one in which we can act with the requisite certainty; for the consequently, respect limitations of the role judicial demands we refrain from exercising extraordinary to rewrite an power unconstitutional law.

I The considerations of comity prudence have governed judicial action in the delicate area of rewriting unconstitutional be legislation cannot reduced to a circumstances, formula. In some simple the nature of constitutional flaw and the history command sal- legislation clearly vage by circumstances, rather than rewriting, total invalidation. In other unwarranted, reformation is unworkable and and invalidation is the only course the courts take. may

Courts hesitate least to rewrite a law when all that is called for is to “construe” a or vague overbroad law its specifying narrowing appli- cation. Two are justifications apparent willingness impose construction, such a effect, even if narrowing it insertion of requires, limiting First, into a law enacted language without such limitation. a nar- rowing reformation decreases rather than increases the number of cases in which the statute will In most circumstances a apply. court can reasonably may alternative” indeed exist if the statute question “attachability has an clause.” But not otherwise. Neither Skinner nor Iowa-Des Moines National Bank is to the contrary. assume the that decreed the statute’s to a body broad application set of would it cases remain a subset those same prefer applicable cases, than rather be invalidated completely.

Second, that a court faced with an overbroad unconstitutionally statute limit its construction scope by narrowing well-accepted principle (See, v. 12 constitutional review. United States 200-Ft. Reels Film e.g., 123, 130, 500, 507, 2665]; U.S. fn. S.Ct. City Welton v. Los 18 Cal.3d Angeles 1119].) P.2d bodies are Consequently, may presume legislative aware of the possibility broad on constitutional statutory language touching will, unconstitutional, if interests held subject narrowing courts. If statute one end vague construction save a overbroad is at of the continuum, reformation at the other are cases in those which proposed of a involves substitution new and different scheme rewriting substantially for (See, (1971) that created Blair v. Pitchess 5 legislative body. e.g., 42, 1242, 258, Cal.3d 283 486 P.2d 45 A.L.R.3d Cal.Rptr. [96 1206] to reform unconstitutional claim and that could [declining law not delivery without v. its Dillon Munic repaired “completely redrafting provisions”]; 860, Ill, (1971) 4 484 ipal Court Cal.3d 870-871 P.2d Cal.Rptr. [94 945] construe ordinance as licensing ministerial [declining parade imposing conditions, to issue where on its duty stated ordinance face permit no such officials uncontrolled discre imposed duty appeared grant tion].) these is Under circumstances reformation “a strive truly practice U.S____[130 (United (1995) to avoid.” States v. 513 Treasury Employees 987, 1003].) 115 L.Ed.2d S.Ct.

When the task of a statute from has involved saving unconstitutionality more than severance of a clause or insertion courts narrowing language, have with caution. One consideration is properly proceeded important whether the court can be confident it sufficient in the expertise possesses to draft practical matter an enforceable and law. Not subject surprising, therefore, that the such in California is primary example redrafting (1975) In re M. 14 Cal.3d 727 Edgar jurisprudence, [122 406], P.2d involved a rule for of the an area in operation justice system, (See which this court could claim both also general authority. expertise United v. Thirty-Seven (1971) States Photographs 822, 831-832,

L.Ed.2d 91 S.Ct. addition of [justifying constitutionally 1400] time limits to as much statute observation “we required possess as time limits expertise Congress” determining prosecuto- appropriate rial and functions].)

In some when a is cases—for statute extended an example, by eliminating unconstitutional an exception—rewriting may require unconstitutional law another to uneffectu go one while legislative policy allowing implementing on “the of such reformation has been said to depend ated. propriety and ... of commitment to the residual intensity policy degree scheme” that elimination of the statutory potential disruption excep (Welsh would v. States U.S. tion cause. United 308, 333, Harlan, J.).)1 (conc. L.Ed.2d S.Ct. opn. 1792] Thus, the historical commitment to the residual has been deemed policy If the law the substance of after is of especially important. rewriting long nature, and fundamental an inference arises the standing naturally would the law to remain in force body strongly prefer despite change (See extension to some undesired v. Welsh operation, applications. States, United U.S. 365-366 333-334] Harlan, (conc. J.) tradition of conscientious opn. [long exempting objec statute, tors reason to conscientious compelling even repair objector excluded]; extension to those the statute had though repair requires Speegle Board Fire Underwriters 29 Cal.2d P.2d could sever from the unconstitutionally vague exception Cartwright [court Act, intact, the rest of the act leaving because the fundamental part policy combinations in restraint of against trade had existed at common law and been created].) codified in the act before the was exception

II The lead demonstrates that opinion neither the reformation by proposed Baxter, nor that devised petitioners, Justice by would effectuate all three of the key policy embodied in judgments 73’s contribution Proposition limits. ante, (Lead 664-670.) I opn., that fact alone agree sufficient reason benefits, 1Where the provision government scheme involves disruption by caused invalidation of important the statute be the most consideration. Aware that “[a] judgment invalidating a benefit statute something takes of value from a class not before the (Ginsburg, Thoughts court” Authority Repair Some Legislation Judicial to Unconstitutional (1979) 301, 321), 23 Clev. St. L.Rev. especially willing courts are interpretive to stretch their powers, or to forthrightly rewrite a eliminating law an exception, unconstitutional where (See, the alternative is invalidation of an program. e.g., established benefit v. Califano 382, 395, Westcott [extending S.Ct. statute part because needy benefits”].) alternative would “terminate statutory families’ entitlement to Conversely, we chose invalidation over extension of an survivorship automatic benefits provision in circumstances where invalidation any would not “result in substantial disruption scheme, of the overall workers’ compensation any hardship employee’s unfair to an (Arp Comp. survivors.” Appeal Workers’ Board Cal.3d 849].) 563 P.2d The balance exception between the excised and the residual law can sometimes be numerically: measured relatively “When a member of a small class seeks access right class, to a enjoyed by or benefit substantially larger guess it seems a fair that the legislature prefer would preserve preservation what it authorized even if the requires enlarging (Ginsburg, supra, the benefited class.” 28 Clev. St. L.Rev. at for not the initiative attempting salvage it. The by rewriting considerations above, view, outlined also militate my against attempting judicial repair 73. Proposition

Both the reformations proposed would this court not require merely initiative, sever or limit of the provisions but actually replace sections held unconstitutional with different substantially that were never provisions considered the voters. The unconstitutional lie at the heart provisions scheme created statutory initiative. We are thus faced not with the minor, task of correcting statute, flaws to save an peripheral otherwise valid but with the law’s rewriting central operational On provisions. the reforma- earlier, tion continuum sketched fall at the proposed repairs far extreme avoid; courts practices seek to properly the most only circum- compelling role, stances should move the court to so far outside step its normal and even then, when only the court can be confident its actions effectuate the funda- mental policy of the objectives legislative body.

In his concurring Justice dissenting opinion, Baxter emphasizes the voters who enacted 73 wanted Proposition contribution campaign limits. court, however, This cannot assess the accurately of that intensity residual divorced from policy, consideration as to any amounts and appropriate of the contributions timing allowed. The voters enacted a scheme quite on the contributions; amounts and specific court, of allowable timing this view, has no my on which to grounds cared presume that limits be they only whatever the imposed, limits be. In the absence of might direction in the any itself, initiative we cannot be confident the electorate wanted the judiciary law, rewrite the central provisions should those provisions prove invalid.

Were reformation, we to undertake the task of we would have for guid- ance no historical commitment to contribution limits. Nor can we say invalidation would an disrupt existing scheme on which operational parties not before matter, us are depending. subject is and finally, falls complex outside the area in which an court appellate can claim special expertise we, therefore, thorough knowledge. Were to undertake to rewrite Proposition it, 73 in order to save we would be assuming legislative but without powers, circumstances that compelling have led courts to do so in occasionally I past. join of majority my colleagues to make such an declining unwarranted from our normal departure duties. judicial KENNARD, J., Concurring and Dissenting. concur in the judgment. I

I agree with the Chief Justice and Justices Mosk and that this Werdegar court not issue a writ of may mandate commanding to73 we not reform of 73 and that Proposition Proposition enforcement however, base I do not my colleagues, constitutional Unlike infirmity. avoid not amenable on a determination that Proposition conclusions these I that so were to reach I would determine (although reformation and that must full faith give but on the far simpler ground question) and this already finally has resolved issue to the federal judgment credit conclusively.

I 1989, (the 10, International Union the Service February On Employees others, to bar court a writ of mandate Union), this for among petitioned 73, reform initiative that of finance enforcement Proposition campaign 7, 1988, and that had become had enacted on June voters California Union the Fair 1989. In its named petition, January operative (FPPC) as the it named Senator Political Practices Commission respondent; Johnson, Quentin Ross Kopp Assemblyman Proposition proponents 73’s as real in interest. The Union parties alleged Proposition First limitations on violated the contributions campaign expenditures 1, 1989, Amendment to the United States Constitution. On March this is, (that without written or issuance summarily denied petition opinion writ), thereby constitutionality of an alternative address declining (Service Fair Practices the initiative. Inf l Union v. Political Employees Comm., Mins., Adv. No. 9 Ct. Mar. Pamp. Supreme Reps. [Off. Mins., II].)1 24, 1989, it

The Union turned to On March then the federal courts. United commenced an action for relief in the declaratory injunctive Union, (Service District AFL-CIO v. FPPC States Court. Intern. Employees (E.D.Cal. 1989) 1173.) writ of Like the F.Supp. petition court, chal- mandate filed with federal action this Union’s previously as the First to the United States lenged Proposition 73 Amendment violating defendant; Senator Constitution. The named the FPPC as the complaint in the federal action Johnson soon intervened Kopp Assemblyman (Id. additional defendant. fn. parties challenge Proposition 1When this court consider refused to the Union’s constitutional determining process Proposition superseded every provision we were in the whether Proposition which was another initiative that the voters campaign financing reform election, actually the June or only provisions Proposition enacted at those 68 that majority ultimately Proposition with A Proposition conflicted 73. of this court concluded that entirely superseded (Taxpayers Campaign Spending Pol. Proposition 73 68. v. Fair Limit dissented, (1990) 787, 1220].)

Practices Com. 51 Cal.3d 744 P.2d I 799 II, 10, (b), concluding majority that the of the had misconstrued article section subdivision Constitution, requires provisions simultaneously initia California which that the of enacted Kennard, (dis. greatest possible tives be reconciled of p. opn. to the extent. Cal.3d at 774 J.).) 680 15, 1989,

On May federal district court a issued preliminary injunction barring enforcement of a 73 that restricted the provision Proposition 1, (Service funds raised before expenditure January Employees 1989. Union, FPPC, 1172, Intern. AFL-CIO 1173.) v. 721 On F.Supp. 14, 1989, the district court September the enforcement permanently enjoined 26, 1990, (Id. 1180.) same at provision. On the district September court rendered its the FPPC judgment permanently from enjoining enforcing (Service 73. v. Proposition Employees (E.D.Cal. Fair Political Practices 1990) 580, 593-594.) 747 This F.Supp. was based on the injunction district court’s conclusions that certain 73 violated the provisions Proposition First Amendment to the United States Constitution and that these unconsti tutional could not be provisions severed from the remainder of the initiative. FPPC, (Id. at Senator Johnson Kopp, Assemblyman appealed. Intern, (9th v. Fair (Se Emp. 1992) Political Prac. Com’n Cir. rvice 1312, 1314.) 955 F.2d 7, 1992, On February the Ninth Circuit Court of affirmed the Appeals Intern, Com’n, district court’s (Service judgment. Emp. Fair Political Prac. 1312, 1323.) supra, 955 F.2d The federal court held that appellate Proposi tion 73 violated the United States Constitution insofar as it limited contri basis, transfers, butions on a fiscal banned inter- year and intra-candidate prohibited (Id. of funds raised before expenditure 1989. at January 1321-1323.) The federal pp. court also addressed and appellate specifically rejected argument 73 could be “saved” a Proposition of its rewriting terms: “Were we to rewrite the limit statute to contributions basis, on an election cycle would be at a loss to know what the dollar short, statute, amounts of the limitations should be. to save the we would have to rewrite it ‘a that is disfavored.’” substantially, practice decidedly (Id. at p. v. American Obstetricians & quoting Thornburgh College of 779, 795-796, Gynecologists 106 2169].)2 S.Ct. 29, 1992, certiorari,

On June the United States Court denied Supreme thereby to review the Ninth declining Circuit’s decision. Fair (California decision, 2After the Ninth Appeals Circuit Court of rendered this California Common Cause, others, court, among original filed an proceeding mandamus in this in which it contended that the Proposition Proposition federal courts’ invalidation of by- 73 revived 68 (Gerken operation v. Fair Political Practices Com. of law. 6 Cal.4th 710 [25 Cal.Rptr.2d 694].) Proposition Proposition P.2d like had been enacted ante.) (See majority of the voters. agreed argument fn. This court address when it Thereafter, court, issued an majority fully alternative writ. of this aware of the federal Com., (Gerken invalidating v. Fair Proposition decision Political Practices pp. at 710, 712), (Id. (lead Proposition inoperative.” opn. decided that “remains Lucas, J.), (cone. Baxter, J.).) C. opn. joined dissenting opinion, I Justice Arabian’s Proposition which concluded that Proposition 68 took effect once had been ruled uncon (Id. Arabian, (dis. J.).) stitutional enjoined. and its enforcement opn.

681 Union, International v. Service Employees Practices Commission Political 922, 3056]; AFL-CIO, 1230 L.Ed.2d 112 S.Ct. (1992) U.S. CLC 505 [120 Union, (1992) AFL-CIO 505 U.S International v. Service Employees Kopp Thus, 29, 1992, at 922, June 3057].) 112 S.Ct. 1230 latest, 73 perma- invalidating Proposition the federal judgment very (See Rules final. Fed. App. its had become enforcement nently enjoining Proc., U.S.C.) 41(b), 28 rule 14, 1994, Circuit had than after Ninth March more two years

On after the United States more than months eighteen its decision and issued decision, had to review that Senator Kopp Court declined Supreme this for a writ filed with court their present petition Johnson Assemblyman court, to essentially, Proposition The asks this rewrite mandate. petition the federal courts and infirmities identified 73 to avoid constitutional 30, On June 73 as so rewritten. the FPPC enforce Proposition order 1994, writ, thereby give this court an alternative agreeing issued and to decide it a written full consideration petition opinion.

II to final judgment A court is full faith and credit give state required Fabrics, Textiles, (9th (Americana L & L Inc. Cir. a federal court. Inc. v. Minerals, Research, 1524, 1529; Inc. 1985) Inc. v. Omega 754 F.2d Hazen 151, 153, 1; Cal.3d (5th 1974) (1977) v. Cohen Levy Cir. 497 F.2d fn. faith and [stating 172-173 P.2d Cal.Rptr. “[f]ull court”]; order or of a federal see 28 credit must to a final given judgment 1738; (1938) Stoll L.Ed. U.S.C. v. Gottlieb § 107-108, 134]; 85 Yale (1976) S.Ct. Res Judicata Degnan, Federalized 741, 744-749.) courts full faith and L.J. that state requirement give system credit to federal is inherent in essential our federal judgments should “It that state courts would be unthinkable to government; suggest courts, be free to the basic disregard given require- federal judgments and that ments that state honor the of courts other states judgments courts al., must et Federal federal courts honor state court judgments.” Wright 648-649, omitted.) fns. (1981) Practice and Procedure § credit, ‘has it federal Because is entitled to full faith judgment “[a] ” same effect in the have in a federal court.’ courts of this state as it would v. Jensen 605 P.2d Cal.3d (Younger courts, Cohen, 813], 165,173.) In federal Levy Cal.3d quoting courts, doctrine effect under the state final given judgment preclusive are if of that doctrine res judicata requirements application 322, 326 (See, U.S. Hosiery satisfied. Parklane Co. v. Shore e.g., 682 552, 559, 645]; 99 S.Ct. Greater Los Angeles Coun. Deafness 1353, (9th 1987) 1359-1360.)

v. Cir. Baldrige 827 F.2d The doctrine of res includes two judicata distinct types preclusion: Platters, (Robi (9th claim and issue v. Five Inc. preclusion Cir. preclusion. “ 1988) 321.) F.2d Claim ‘treats a once judgment, preclusion rendered, as the full measure of relief to be accorded between the same ’ ” (ibid., on the same “claim” or “cause of action” parties quoting Raspar Works, (5th 1978) Wire Inc. v. Leco & Mach. Cir. 575 F.2d Engineering 535), while issue of all ‘issues of fact or law preclusion “prevents relitigation that were decided’ in a actually litigated necessarily prior proceeding” Co., (838 F.2d at v. American & p. quoting Segal Telephone Telegraph (9th 1979) 845). Inc. Cir. 606 F.2d Issue when the preclusion applies actions, same issue is both to be was a presented party precluded party earlier the issue was decided in the earlier action proceeding, actually after a full and fair for and the earlier action ended in litigation, opportunity final, valid, Platters, Inc., (Robi and on the merits. v. Five judgment 322; al., 137-138.) at supra, et cit. Each Wright op. supra, § of these is satisfied here.3 requirements

This mandate action the same issue—whether presents Proposition may be reformed to avoid constitutional was in the infirmity—that presented earlier federal action. The to be and As- parties precluded—Senator Kopp Johnson—were to the federal action.4 After a full and fair semblyman parties the federal courts decided that opportunity litigation, Proposition may reformed, not be so and that determination has been embodied in a judgment Intern, final, valid, (Service that is and on the merits. v. Fair Political Emp. Com’n, 1312.) Prac. 955 F.2d supra, do

My colleagues not that the usual for issue dispute requirements preclu instead, sion are interest” to issue present; they apply “public exception (Lead claim as articulated in preclusion decisions of this court. opn., ante, 621; Baxter, J., conc. & dis. But when a opn. post, federal court is federal as the federal courts exercising question jurisdiction, met, requirement 3Because the preclusion clearly for issue are I do not address whether the requirements preclusion for claim are also satisfied. preclusion presence 4Issue is not barred of California Common Cause in this action Taxpayers party plaintiff. as an additional party California Common Cause was a to both Com., Campaign Spending Limit v. Fair Pol. Practices and Gerken Cal.3d Com., Fair Political Practices ample opportu 6 Cal.4th and it had notice of and nity only to intervene in the party proceeding federal action. It became a to this because this permitted it to intervene after we To allow presence had issued the alternative writ. its in the action to preclusion encourage parties preclusive defeat issue would to evade the effects judgments by adding of final the simple expedient parties additional to the later action. federal Constitu violated that Proposition determined when they did later state proceedings federal judgment tion, effect the preclusive U.S. (1994) 510 v. Utah law. (Hagen than state rather federal measured is 958, 964]; Martin v. Martin _ 263-264, 252, 114 S.Ct. 399, L.Ed.2d 662]; 526, Judg Rest.2d 470 P.2d 752, 761 2 Cal.3d 87, ments, 314.)5 p. § to issue exception interest” a broad “public not recognize law does

Federal U.S. Stores, (1981) 452 v. Moitie Inc. Department In Federated preclusion. 110-111, 2424], United States 103, S.Ct. 394, 101 L.Ed.2d 401 [69 which or of law equity ‘no “There is simply principle Court stated: Supreme of res the salutary principle federal court of a the rejection by sanctions is on ‘public policy’ reliance The Court of Appeals’ judicata.' [Citation.] policy ‘[pjublic court has long recognized This similarly misplaced. an who have contested that those end of litigation; that there be an dictates contest, tried matters once and that result of the be bound issue shall the parties.’ settled as between [Citation].” be considered forever shall States Supreme the United construed this statement Federal courts have exception or policy” no interest” “public to mean that there is “public Court 1994) F.3d (8th Cir. 29 C.I.R. federal law. v. (Baptiste res under judicata Industries, 1992) F.2d 436; (3d Cir. Inc. v. Morbark Repola 1263, 1265.) Even Woodstock, 943; (N.D.Ill. 1981) 521 F.Supp. Inc. Smith v. fed survives under interest” exception that some narrow “public assuming law, here. eral it does not apply defeats, issue preclusion. not

The interest in this case supports, public in the finality judgments preventing There a interest is strong public Stores, Moitie, U.S. (Federated Inc. v. Department relitigation. considering a state court is governs when opinion asserts that state law 5The Chief Justice’s (Lead judgment. estoppel applies to a federal exception judicata res or collateral whether an ante, Judgments, 16.) section the Restatement Second opn., p. at fn. Not so. As judgment of a judicata of a under the rules of res “Federal law determines the effects states: 314.) (Rest.2d Judgments, p. federal court.” § Supreme Court’s decision the United States opinion also maintains that The Chief Justice’s 22, 31-32, S.Ct. in Dombrowski L.Ed.2d 491-492 [14 Pfister following federal court’s decision. may a recognized that a state court “reform” a state statute ante, removing any limitations I do not read Dombrowski (Lead opn., p. fn. through guise of “reformation” authority to undermine final federal decisions this court’s threats to distinguishable. the use of otherwise. Dombrowski is readily That case involved convictions, enforce, impaired statute that any securing an overbroad expectation without 26].) not there high court did p. L.Ed.2d at expression. freedom of U.S. at 482 [14 {Id. by construction. question the statute could be narrowed address the of whether reject Nothing in Dombrowski 31].) suggests the court intended to L.Ed.2d at governed by federal judicata judgment of a of a federal court principle that the res effect law. 103, 110-111].) There is an additional equally interest that state courts and honor federal

strong ensuring public respect interest that is embodied in the doctrine of judgments, comity6 public in the that state courts full faith and credit to the requirement give judgments of federal courts. The combined of these far weight any interests outweighs benefits to be derived from reformation of a unconstitutional facially law, even that the law were amenable to such reformation. assuming

Moreover, even under state law interest” is invoked “public exception circumstances when it only relieve exceptional necessary (Arcadia of an erroneous earlier determination of the issue. public agency School Dist. v. State 251, Education (1992) Dept, Cal.4th 259 [5 Unified of 545, v. State 438]; City Sacramento 825 P.2d Cal.Rptr.2d of California of Here, 522].) 50 Cal.3d 785 P.2d the Chief Justice and Justices Mosk and conclude that the federal Werdegar courts resolved the issue when the Ninth Circuit decided that correctly 73 is not amenable to reformation to avoid constitutional Proposition judicial ante, ante, 664-670; Mosk, J., (Lead at conc. of at infirmity. opn., pp. opn. 671.) This conclusion that the earlier determination was correct defeats of the interest” application “public exception.7

Ill “The the resolution of this does not to the substantive merits of dispute go but it to basic of courts of controversy, goes directly jurisdictional powers (Del. Valley Council v. Com. Pa. (3d Cir. separate sovereignties.” Citizens’ of 1985) 44.) 755 F.2d jurisdiction, single 6“The forbearance which courts under a of co-ordinate administered other, avoided, system, whereby by avoiding exercise towards each conflicts are interference other, process higher principle comity, perhaps with the of each is a of with no sanction than concord; utility which comes from but between State courts and those of the United States, law, therefore, something right necessity.” it principle is more. It is a and of of 390, 392-393, (Covell 355].) Heyman L.Ed. 4 S.Ct. agree suggestion public 7I do not with the Chief interest apparent Justice’s exception judicata may applied majority to the doctrine of res be whenever a of the court ante, 622-623, (Lead litigation permitted. opn., pp. decides that further should be at fn. Education, City Dept, Both Arcadia School Dist. v. State 2 Cal.4th Unified California, supra, prior Sacramento v. State 50 Cal.3d corrected erroneous state court of decisions involving agencies. public As this court stated in Arcadia School Dist. v. Unified Education, Dept, extremely page public exception State “The interest is an 259: one; rule, only narrow emphasize exception, applied that it is the not the and is to be exceptional public exception circumstances.” I am of the that the interest therefore view requires merely disagreement prior more than with another court’s decision. agree propriety prior Nor do I with the Chief decision irrelevant to Justice that approach public exception determination of whether the interest should be invoked. That determined, judiciary relitigate already finally would allow consider- matters without relitigation necessary ation of whether I would more appropriate. such is either accord respect already fully fairly litigated. to matters that have been 73 has been repeatedly enactment in June Proposition Since its This is the third and federal judiciary. opinion both the state addressed initiative, also been the subject which has concerning from this court Those federal federal proceed- extended and complex judicial proceedings. been therein have run their course and the issues presented have now ings that is now and embodied in a federal judgment on the merits adjudicated final. that it has the filed this court has decided today, the various

By opinions resolved this federal judgment— to redetermine an issue finally power to avoid constitutional infirmity— whether reformed Proposition and to a writ enforcement of ordering Proposition despite issue enforcement of that same law. federal judgment permanently enjoining ante, 620-625; Baxter, J., (Lead conc. & dis. this post, opn., opn. Arabian, Baxter, (Justices would George) actually Three justices page.) writ; others, court has the three that this although issue proclaiming so, should not issue because to do are of the view that the writ power (the Chief Justice and 73 is not amenable to reformation Proposition authorization Justice or because this court has no absent Werdegar), power, Mosk). (Lead (Justice to reform act Legislature, opn., ante, ante, 664-670; Mosk, J., conc. of opn. pp. above, that a state court is at

For the reasons I do not agree explained a of a state law federal enforcement liberty disregard judgment enjoining dis- on federal constitutional because the state court grounds may simply not with the federal courts’ conclusion that the law is amenable agree reformation. A state court and credit to the final must full faith give federal court from issues judgment by precluding relitigating parties were determined in the federal fully fairly litigated necessarily action. I would do so here.

BAXTER, J., Concurring and Dissenting. concur all aspects parts I reasons, III. and IV. of the lead theAs lead opinion. persuasively opinion this court is not barred of res collateral by principles judicata, estoppel, from comity whether the flawed considering constitutionally provisions addition, be reformed. In the lead concludes Proposition may opinion that a court is under to reform a statute in order to correctly duty preserve its (i) when it can with confidence that it is constitutionality say possible reform the statute in a manner that effectuates judgments closely policy (ii) articulated would clearly enacting body enacting body, have the reformed construction to invalidation of statute. preferred dissent, however,

I V. and VI. of the lead respectfully opinion. from parts that, The lead fails because it opinion recognize extremely difficult and burdensome to cure a constitutional defect an initiative statute, one in particularly which the interests of the conflict people may elect, with the interests of the lawmakers a court should exert a they greater effort to reform such statutes. More it is view that the fundamentally, my minor constitutional flaw discerned relatively the federal courts in Prop- osition 73’s of a use “fiscal basis for year” regulating pace campaign contributions should not result in the invalidation of one of complete most election reforms in recent Given the important voter-approved years. fundamental there is purpose little doubt the voters who Proposition different, enacted the measure would have preferred slightly but constitu- valid, limits on tionally contributions over the elimina- campaign complete tion of and all contribution any limits. either of the By refusing implement case, modest reforms this the lead proposed thwarts the opinion people’s initiative, and will exacerbate the precious right surely crisis of perceived confidence in our electoral system.

I. As the lead at some both the United opinion explains States length, Court and this court have on Supreme numerous occasions relied upon various judicial construction of doctrines—including judicial ambiguous statutes in a manner to avoid constitutional doc- questions, severability trine, and judicial reformation—to to the extent preserve, constitutionally measures that otherwise be invalidated possible, legislative because of might statute, constitutional flaws. reformation Judicial of a in a manner that effectuates the intent of the but eliminates the enacting legislative body statute, constitutionally feature of the accords defer- impermissible proper ence to the legislative choices and is less body’s policy intrusive generally the domain than the upon legislative wholesale invalidation of the judicial statute on constitutional which thwarts the grounds, completely accomplish- ment of the of the objectives legislation. considerations are foregoing factors whenever weighty legislative flaw,

measure contains a constitutional but assume even they greater signif- measure, icance when the measure at is issue an initiative enacted invalidated, vote. When a statute popular enacted the is it Legislature decision, be may the to react to the relatively easy Legislature and to enact a new that the while provision accomplishes legislative purpose the constitutional When avoiding flaw. an initiative statute is found to be flawed, however, it be more difficult may and burdensome for the vastly proponents the statute to undertake the considerable administrative and financial effort to a new initiative on the ballot in order to cure the place Thus, matter, constitutional defect. as a a court that is concerned general this should take the legislative process deference to about according proper account, effort to reform that a greater and should recognize difference into in the statute invalidating than initiative more may appropriate an statute because the flaw. toto or even reform be necessary not that efforts to would

I am suggesting ordinarily lawmakers to all measures. Elected desirable with initiative regard not, initiatives and will stake matter of subject will not have a in the personal to their constituents. be “adversary” be in a that general, position may measures, Thus, a court invalidates in the most initiative if case of lawmakers, will the initiative elected appreciating the entirely, provision voters, a new decision enact themselves of the may respond consti- voters’ and cures the that effectuates the intent legislative provision defect. tutional even that perhaps

But I believe reformation especially, strongly where, here, interest a particular as voters’ uniquely, appropriate elect. In they to the interests of the lawmakers reform be adverse initiative, that limits the campaign case of an like Proposition imposes receive, can the self-interest contributions that elected lawmakers react to a court decision lawmakers makes it less will likely they limits new contribution enacting the initiative’s contribution invalidating flaw. but eliminate the constitutional limits effectuate voters’ goals reasons, arises For the I the context in which this case believe foregoing most circumstance for this court undertake presents compelling reform, flawed effort to rather than invalidate entirely, constitutionally Indeed, we are obligated contribution limits of a court Proposition 73. resolve reasonable any initiative and to jealously guard power, precious (Raven Cal.3d Deukmejian doubts favor of its exercise. case, cited.) 1077], This much P.2d cases others, initiative

more so than for a liberal construction most calls (Ibid.) the democratic power promote process.

II. standard, to reform lead it is Using quite Proposi- opinion’s possible tion 73’s “in a manner effectuates closely policy flawed provisions ante, at (See lead articulated judgments opn., clearly by [the electorate].” 661.) I As contribution provisions shall explain, campaign enacted, elimi- while fundraising reformed limits as closely replicate fiscal the modest reformation nating defective restriction.. year Although cannot) flawed (and I not exactly existing does mirror propose logic, restrictions, it can be concluded with absolute confidence that the voters “would have the reformed preferred construction to invalidation of’ the (See ibid.) limits on contributions. popularly passed To determine whether 73’s contribution limits are of Proposition capable reformation, we must first ascertain what the voters in sought accomplish their passage. 1988,

Prior to California law did not limit the amount of generally money that an individual could give political contributions candi campaign dates for state elective office. which on the June Proposition appeared ballot, to reform the of statewide sought financing and local political In the ballot campaigns. of the initiative ex arguments, proponents “ their concern that pressed officeholders can be unduly [candidates influenced interest that donate by special amounts of groups large money,” $10,000, $20,000 $30,000 the voters that of informing “[contributions “$100,000 routine” and that contributions common becoming [were] [were] Amends, (Ballot voters, place.” with Pamp., Proposed arguments to Primary (June 1988) Elec. of argument favor The Prop. proponents would, urged 73 because it other passage Proposition among things, a reasonable contribution limit on “place how much one donor can any give (Ibid.) to a candidate.” voters,

As passed 73 limited Proposition contributions campaign $1,000 from (Gov. a to a candidate “person” to no more than fiscal per year Code, 85301, (a)),1 subd. and from a committee” to a candidate “political § $2,500 to no more than (a)). fiscal per year (§ subd. initiative further limited contributions from a “broad based committee or political $5,000 to a political candidate to no more than fiscal party” per year. (b).) subd. (§ these limits on the By amount supporting permissi- contributions, ble the voters their demonstrated a willingness accept limited intrusion their upon constitutional rights political expression association2 in order to reform the political by eliminating process actuality from financial contri- appearance corruption resulting large butions to candidates officeholders.

After the a federal court an passage Proposition appellate upheld injunction enforcement of the contribution against limits the basis that the indicated, 1Unless statutory otherwise all further references are to the Government Code. 2As the Supreme recognized United States Court upholding its landmark decision federal limits, contribution, campaign “[m]aking joining contribution political party, like serves to addition, person affiliate a with a persons pool candidate. it enables like-minded their political goals.” (Buckley resources in v. Valeo furtherance of common U.S. 659, 689, 612].) reasons, observed, high 96 S.Ct. For these contribution interests, implicate limits rights political fundamental First Amendment such as the (Id. expression 689-690].) pp. and association. L.Ed.2d at incum- in of discriminated favor unconstitutionally restrictions fiscal year Intern, Cir. (9th Prac. Fair Political Com’n (Service Emp. bent candidates. on decision 1316-1321.) The court rested its federal 1992) F.2d do substantial court can and raise the district that incumbents findings as a general while incumbency, in each of the years of money amounts decision, (Ibid.) the and do so.3 In its cannot do not challengers matter Proposition the parties opposing cited the following argument—advanced the effect discriminatory limits—which illustrated the contribution 73’s the of contribu- as a for pace restrictions mechanism regulating fiscal year “Thus, an individ- may an state tap for incumbent example, legislator tions: term, $1,000 a while four-year in fiscal of her year ual contributor for each in until the do the same fiscal years cannot opponent realistically potential result, . . As a . Proposition which the and elections occur. primary general to of an individual who chooses limits the contributions effectively $1,000 [totaling to in each of two fiscal years a nonincumbent support an $2,000 the an individual who chooses to support for election while cycle], $1,000 [totaling in each of four fiscal years incumbent contribute may $4,000 1315.) (Id. for the cycle].” same then, us, it is to reform

The for is whether Proposition question possible intent of limits in a manner that effectuates the 73’s contribution closely fea- while fiscal constitutionally year voters eliminating impermissible ture and its effects. The answer discriminatory yes. obvious can and should contributions provisions restricting campaign on to contributions reformed an “election basis limit cycle” campaign $2,500 $1,000 (for (a)), to to no than subd. loans candidates more § $5,000 (b)), (for (a)), (for subd. subd. multiplied § § candidate, the number term of office years sought by so mechanism races to further a election” pacing “per partisan incorporate more be contributed that no than one-half the total allowable amount may of the total allowable election and no more than one-half prior primary and the general be contributed between the election primary amount effectuate election.4 This modified would serve to cycle approach election limits in the intent the voters enact contribution meaningful campaign “ court, 3According challengers not run until findings by do decide to district ‘[m]ost success, depend relatively cycle prospects late because for which [election] incumbent, years or state cannot be national trends and information about assessed ” Intern, Com’n, (Service Emp. v. Fair Prac. F.2d Political advance of the election.’ reformation, aggregate example, “person” 4Under this a maximum could contribute $4,000 office, give any but could running gubernatorial amount candidate for a Senate or addition, $2,000 general no more than of that amount each election. primary for each $2,000 running any “person” aggregate could contribute a amount of candidate maximum 73, and at the same amounts by Proposition the total aggregate permitted time, of contributions a constitutionally permissible the pace regulate manner. Cause, intervener Common both strongly supporting

Petitioner Kopp reformation, that the at oral they agree form of stated argument some voters’ intent would be more faithful to the election cycle approach modified in their Taking the flawed contribution limits entirety. than invalidating however, and intervener urge adoption different position, petitioner slightly limit, $l,000/$2,500/$5,000 which election per represents of a straight reform the modified election cycle more finance than stringent campaign enacted, (the or even than Proposition or than proposal, Proposition but had which had been intervener reform measure competing sponsored ante, 664-665.) Even 73). (See lead at pp. lost out to Proposition opn., that either the straight per I with and intervener though agree petitioner reformation would more election reformation or the modified election cycle invalidation, the more effectuate the voters’ intent than outright closely course, believe, the less restrictive modified I would be to adopt prudent limits on fundamental election since contribution impinge cycle approach Valeo, 424 U.S. at (See Buckley pp. First Amendment interests. view, 689-690].) not be assumed it should my 21-23 pp. and associa- rights expression the voters would that their prefer political initiatives than either of the reform origi- tion be limited more restrictively them, limits of even election contribution though nally presented per $1,000, $2,500, $5,000 and are most of the voters would likely satisfy 690-694].) L.Ed.2d at (See constitutional. id. at pp. probably Cause, Fair Like and intervener Common respondent petitioner Kopp (FPPC) clearly also that the voters agrees Political Practices Commission Furthermore, never suggested has wanted contribution limits. respondent total an seeks to preserve campaign election cycle approach, which either would be contributions in the amounts allowed under Proposition or too difficult to administer. Significantly, respondent represented improper did not care whether a per to this court at oral that: argument respondent event the used in the election or an election is cycle ultimately approach reformed; could admin- certainly are respondent contribution limits Given these ister and enforce either effectively. express represen- approach assurances, it difficult to the lead why opinion tations and comprehend reformation and relies as a basis denying upon respondent’s position the voters’ will. frustrating out, the of reformation— as the lead

Finally, opinion points opponents Democratic and amicus curiae California intervener California Legislature office, $1,000 primary give of that amount for each Assembly for an but could no more than general and each election. of amounts and total maximum the that the replication Party—take position contributions are both the of pace the of a mechanism to regulate retention reformation, this court neither is without possible but that to necessary or its own the statutes policy in extensive of rewriting imposing engaging (Lead as enacted. opn., of those reflected in the statutes in judgments place ante, at the modified

If the supports adoption opponents’ position anything, both of stated described above. By incorporating cycle proposal election to the fundamen- steadfastly such an adheres objectives, approach necessary No extensive rewriting tal reflected in the statutes. original policy judgments because the or has been threatened judgments simply substitution policy in substitutes a valid pacer place reformation constitutionally proposed allow, one, in the reformation would some fiscal the flawed because exceed the to for four-year orig- contributions candidates years, offices that, $l,000/$2,500/$5,000 under the (There inal is no limits. question for to candidates two- election contribution limits cycle approach, modified basis would match the limits on an year original aggregate effectively offices Rather, and fiscal the modification of the amount year.) timing for each that are of contributions for offices reflect four-year merely adjustments amounts con- intact the total contribution necessary aggregate preserve and incumbents on under while templated Proposition putting challengers election in amounts.5 the modified equal footing attaining those Though in from in differs these minor cycle particulars, proposal Proposition main it the broader reflected objective Proposition accomplishes policy of reasonable and be reformed enactment process by political contribution limits.6 meaningful Valeo,

In Court the United States Buckley Supreme modest similarly saved a electoral reform statute constitutionally flawed There, means. had enacted and disclosure Congress requirements reporting $1,000/$2,500/$5,000 limits objections straight per election advo opponents’ 5The sympathetic argu Kopp present cated Common Cause a more petitioner intervener all, per aggregate amounts election permit ment. After such limits would less in contribution cycle Proposition 68 and accomplish had with rival its hoped than what intervener measure public funding mechanism. no mecha cycle providing as opinion proposal 6The lead criticizes modified election elections). (e.g., regulate pace nonpartisan all local nism to elections contributions However, Proposition under legislators provision local and electorates remain free another 85101), gaps” (§ “fill in the 73 to limits for elections and to thus enact stricter local FPPC, a total respondent indicated filed with desired. As fact ordinances campaign contribution cities and counties far have enacted their own local California thus governments enact their power apparent willingness of local own limits. Given the limits, pacing mechanism for I that absence of a stricter contributions do not believe nonpartisan reasonably intent. elections can be found to defeat electorate’s (2 434(e)) for federal election U.S.C. former with the intent “to campaigns § achieve ‘total disclosure’ kind of by reaching activity’ ‘every political order to insure that the voters are informed and to achieve fully through undue influence maximum deterrence to publicity corruption possi- 720], (424 omitted.) L.Ed.2d at ble.” U.S. fn. its effort to all-inclusive, however, the statute—which applied broadly “[e]very candidate) (other than a committee or who makes contribu- person political 434(e)(1), added)— tions or . . . .” U.S.C. former italics expenditures § raised serious with to the nature of the problems vagueness regard and “contributions” that were to be “expenditures” required reported (424 those that were neither a committee nor a candidate. U.S. at political 720].) L.Ed.2d at Rather the than invalidating reporting provision however, in its court construed the entirety, high statutory narrowly terms “contributions” and so that the “expenditures” reporting requirements (1) for such would in the circumstances: when persons “only following apply make contributions earmarked for or authorized or they political purposes a candidate or his to some other than candidate requested by agent, person committee, (2) when make for communi- political they expenditures cations that of a identified advocate election or defeat expressly clearly 722-723].) candidate.” U.S. at L.Ed.2d at (and thus By construing effectively reforming) statutory language fashion, Valeo, this U.S. high Buckley clearly modified the and restricted the reach of the electoral reform wording legis- establishes, however, lation before it. The court’s decision that case such action did not amount to an judicial rewriting impermissible the statute or an substitution of the court’s own improper policy judgments for those of the branch as judicially even statute though construed differed in some from the and disclosure respects reporting view, scheme as enacted. In 73’s flawed contri- my reforming Proposition bution restrictions would constitute with modified election limits cycle no more an or substitution of than rewriting judgments impermissible policy court’s actions in v. Valeo. high Buckley

III. In an 73’s unmistakable desire people expressed Proposition above, electoral For I a reformation reforms. the reasons set forth believe based the modified election limits described above would pro- upon cycle which, once, vide a effectuate the intent of this case would: disposition limits; (2) of the electorate to enact contribution meaningful campaign courts; eliminate the the federal constitutional flaw identified by contribute, and the ability of individuals preserve right parties receive, in the candidates to total contributions amounts campaign permitted view, true to the 73. this solution is my “spirit” Proposition deference to the “intent” of and would accord Proposition thereby proper choices made the electorate. policy important

Arabian, J., J., concurred. and George,

Case Details

Case Name: Kopp v. Fair Political Practices Commission

Court Name: California Supreme Court

Date Published: Nov 30, 1995

Citation: 905 P.2d 1248

Docket Number: S038571

Court Abbreviation: Cal.