ELOUISE WESTBROOK et al., Petitioners, v. EMMERY MIHALY, as Registrar of Voters, etc., et al., Respondents. STEPHEN ADAMS, Petitioner, v. EMMERY MIHALY, as Registrar of Voters, etc., et al., Respondents.
S.F. No. 22706, S.F. No. 22707
In Bank. Supreme Court of California
June 30, 1970
2 Cal. 3d 765 | 471 P.2d 487 | 87 Cal. Rptr. 839
ELOUISE WESTBROOK et al., Petitioners, v. EMMERY MIHALY, as Registrar of Voters, etc., et al., Respondents.
[S.F. No. 22707. In Bank. June 30, 1970.]
STEPHEN ADAMS, Petitioner, v. EMMERY MIHALY, as Registrar of Voters, etc., et al., Respondents.
(Two Cases.)
Stephen Adams, in pro. per., Adams & Adams, Philip Adams, Joseph L. Alioto, Peter J. Donnici, Lawrence E. Alioto and Joseph M. Alioto for Petitioners.
Paul N. Halvonik and Charles C. Marson as Amici Curiae on behalf of Petitioners in Nos. 22706 and 22707.
Donald L. Ungar as Amicus Curiae on behalf of Petitioners in No. 22706.
Thomas M. O‘Connor, City Attorney, and Thomas J. Blanchard, Chief Deputy City Attorney, for Respondents.
Wilson, Jones, Morton & Lynch, Ernest A. Wilson, Pillsbury, Madison & Sutro, Francis R. Kirkham, Francis N. Marshall and Noble K. Gregory as Amici Curiae on behalf of Respondents.
OPINION
SULLIVAN, J.—We are presented in these cases with a common issue: whether that portion of former article XI, section 18 (present art. XIII, § 40) of the California Constitution which requires that general obligation bond proposals of counties, cities and school districts be approved by a two-thirds majority of the voters in a popular referendum violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. The challenged section provides, in relevant part, “No county,
Two bond issue proposals were submitted to the voters of San Francisco at a special election held in November 1969. Proposition “A” sought authorization for the City and County of San Francisco2 to incur a bonded indebtedness of $9,998,000 for additions to and improvements of its park and recreation system. Proposition “B” sought authorization for a bonded indebtedness in the amount of $5,000,000 to provide new elementary schools and to modernize existing school facilities in the Hunters Point area of the city. Both propositions received the approval of a majority of the voters but less than the two-thirds required by article XI, section 18.3
Petitioners in S.F. 22706 are residents of and registered voters in San Francisco. Some of them are property owners; others are parents of children attending public schools in the Hunters Point neighborhood. All voted in
Petitioners then commenced these proceedings contending that the two-thirds vote requirement, by giving to each negative voter twice the voting power of each affirmative voter, substantially diminishes the effect of the votes of all persons who, like petitioners, favor passage of propositions authorizing the incurring of bonded indebtedness. Such “dilution” of voting power, it is claimed, denies their right to the equal protection of the laws. Invoking our original jurisdiction (
By issuing the alternative writs we have necessarily determined that there is no adequate remedy in the ordinary course of law and that each case is a proper one for the exercise of our original jurisdiction. (County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845 [59 Cal.Rptr. 609, 428 P.2d 593]; see Cal. Rules of Court, rule 56(a).)
This court has considered the scope and applicability of article XI, section 18 on several occasions since it became a part of our state Constitution in 1879. In this case, however, we face for the first time a challenge to the provision on federal constitutional grounds. When, as here, a
The California Constitution of 1849 contained no debt limits applicable to cities or other local governmental units. However, it did require that any state indebtedness in excess of $300,000 be approved by a majority of the voters in a statewide referendum (
The bubble burst in the 1870‘s as California followed the rest of the nation into a severe financial depression. Banks collapsed, the securities markets declined, municipalities defaulted on their bonds, businesses closed and trade stagnated.9 As foreclosures and unemployment mounted, thousands drifted from the farms to the cities vainly seeking work.10 The general mood was one of disillusionment and anger and the state was swept by radical political movements. It was thus in an atmosphere of economic and political crisis that the delegates to the Constitutional Convention set to work in 1878.11
Article XI, section 18, however, provided the principal instrument for the control of local borrowing. It is apparent, from a reading of the section, that one of its purposes was to establish the “pay as you go” principle as a cardinal rule of municipal finance. Accordingly, the section requires each year‘s expenditures to be satisfied from the income of that year, thus preventing a gradual year-by-year amassment of liabilities. As a result, the actual cost of municipal government is more closely reflected in the tax rate and the citizens are better able to make informed judgments on the performance of their elected officials. San Francisco Gas Co. v. Brickwedel (1882) 62 Cal. 641, the first case in which this court considered article XI, section 18, mentioned only this “pay as you go” restriction15 of the section, which it termed a “radical change” from previous conditions. This restriction is manifestly distinct from that portion of the section which establishes the percentage of voter approval requisite to authorize indebtedness in excess of current revenues.
It is also apparent that article XI, section 18 was intended to compel local legislative bodies to inform the public of projects necessitating long-
Nor do we consider this matter concluded by any of the cases from this and other jurisdictions to which respondents have referred us. While the
Finally, we do not believe that, because an equal protection argument was not made by any of the parties in the cases upholding debt limitations, a challenge to article XI, section 18 on those grounds lacks merit today. It is not surprising that there was apparently no discussion of the possible conflict between a two-thirds vote requirement and the equal protection clause during the Constitutional Convention. Nor is it remarkable that the provision was not assailed on these grounds in the courts. The period in which section 18 was adopted was not greatly concerned about inequalities in the electoral process.17 For example even though the Fifteenth Amendment, forbidding denial or abridgement of the right to vote on racial grounds, had been ratified only eight years earlier, most of the delegates to the Constitutional Convention believed that Californians of Chinese ancestry should not be permitted to vote and only grudgingly limited the exclusion to “natives of China.” (Gaylord, “History of the California Election Laws,” West‘s Election Code, p. 41.) Much water has gone under the bridge since the 1870‘s and we may not resolve this problem by applying the standards of that era. (See, e.g., Brown v. Board of Education (1954) 347 U.S. 483, 492 [98 L.Ed. 873, 879, 74 S.Ct. 686, 38 A.L.R.2d 1180].) “Our understanding and conception of the rights guaranteed to the people by the ‘stately admonitions’ of the Fourteenth Amendment have deepened, and have resulted in a series of decisions, enriching the quality of our democracy, which certainly do not codify State‘s rights, governmental theories or conceptions of human liberties” as they existed in the nineteenth century. (Fn. omitted.) (Fortson v. Morris (1966) 385 U.S. 231, 247 [17 L.Ed.2d 330, 340, 87 S.Ct. 446]; Fortas, J., dissenting.) Our task is to decide whether “the challenged provision is compatible with the demands of equal protection as they apply in contemporary society.” (Castro v. State of California (1970) ante, pp. 223, 231 [85 Cal.Rptr. 20, 466 P.2d 244].) This means, since “notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change” (Harper v. Virginia Board of Elections (1966) 383 U.S. 663, 669 [16 L.Ed.2d 169, 174, 86 S.Ct. 1079]), that the constitutionality of article XI, section 18 must be determined not only in light of the need for and effect of the provision under present conditions, but also in light of the greatly expanded protection we have afforded to the right to vote.
More than any decade since that immediately following the Civil War, the 1960‘s were a time of struggle to transform America‘s ancient promise
The court has entered the “political thicket” (Colegrove v. Green (1946) 328 U.S. 549, 556 [90 L.Ed. 1432, 1436, 66 S.Ct. 1198]) to enforce the equal protection clause in three principal contexts. The first such category is composed of cases involving state laws that exclude various groups from voting in all or in certain types of elections. The court has eliminated many of these barriers to the electoral process; it has invalidated residency requirements excluding servicemen,20 qualifying examinations excluding racial minorities,21 poll taxes excluding the poor and indigent,22 and property qualifications excluding the landless.23 The effect of these, and of related decisions,24 has been to expand sharply the number of persons entitled to participate actively in the election process. This court, for example, complying with principles established by the above line of cases, has limited the application of two voter qualification provisions contained in our state Constitution.25
The third category of which we speak is less neatly defined. In a general way, it deals with the extent to which a state, through the political process, may impose on the interests of one group burdens which are significantly more onerous than those it imposes on similar interests of other groups. In two cases decided last term, the high court struck down
In our view, these three groups of decisions fashion the doctrinal structure and delineate the basic principles that must govern our decision in the case at bench. Turning now to the issue before us, we conceive the broad question to be whether California, after having directed that certain matters of local governmental policy be submitted to the people, may require the outcome to be determined by a decisional process other than that of a simple majority vote.33
Petitioners contend that it may not. Their position may be fairly summarized as follows: article XI, section 18, classifies voters on the basis of the manner in which they vote and, by requiring a two-thirds majority, patently discriminates against those who vote in favor of bond issue propositions. This dilution of voting power denies such voters equal protection of laws, absent a showing that the provision is necessary to promote a compelling state interest. While economic conditions in the late Nineteenth Century may have justified such a provision, today it is no longer necessary to impair the right to vote in order to guarantee responsible municipal financial policies.
Respondents’ position is more elaborate. First, respondents contend, for various reasons, that the equal protection clause has no application to this case. Second, assuming that the equal protection clause does apply, respondents urge, again for a variety of reasons, that we do not adopt the stringent standard of review for which petitioners argue, but instead apply the traditional equal protection test and inquire merely whether the two-thirds vote requirement bears any rational relationship to a valid state
I
Respondents argue that petitioners’ reliance on the equal protection clause is misplaced; three reasons are advanced in support of this position.
First, it is contended that since the purpose of the equal protection clause is to regulate the manner in which our laws classify citizens, it can have no application here because article XI, section 18, draws no lines between groups and creates no classifications. We do not agree. It appears obvious to us that section 18 implicitly creates two classes of voters: those who favor a proposed bond issue and those who oppose it. It is not essential that a classification appear in explicit terms on the face of the law. Nor is it necessary that those who are allegedly disadvantaged by the classification either constitute a class which is “objectively identifiable” prior to the election or that they share in common other characteristics, such as race, economic status or residence. It is sufficient that the class emerge from its inchoate state at the time of the election and that it be defined by the act of voting affirmatively on a bond issue proposition. The equal protection clause extends to the shared political interests of groups otherwise random and diverse. (Williams v. Rhodes, supra, 393 U.S. 23; see also Carrington v. Rash, supra, 380 U.S. 89, 94 [13 L.Ed.2d 675, 679]: ” ‘Fencing out’ from the franchise a sector of the population because of the way it may vote is constitutionally impermissible.” (Italics added.))34
Next, we are advised that because section 18 deprives no one of his right to vote on bond propositions and because each vote is “fully counted,” there is no discrimination, invidious or otherwise, against which the equal protection clause historically has been directed. It is always easier to assume away a problem than to resolve it. However, we think respondents’ suggested assumption distorts reality. It does not require extended dis-
Respondents, however, are unwilling to concede that article XI, section 18 (despite its creation of a classification with adverse consequences for those within it) constitutes governmental action to which the equal protection clause is applicable. They buttress this position primarily by the observation that there is no federal constitutional right in the people of a municipality or other local governmental entity to vote on such a matter as the incurring of bonded indebtedness. We do not understand petitioners to
Respondents also point out that there is no constitutional right to incur indebtedness. This may be correct; it is also wholly irrelevant since the requirements of due process and equal protection apply to governmental acts regardless of whether or not they affect rights specifically guaranteed by other constitutional provisions. (See, e.g., Griffin v. Illinois (1956) 351 U.S. 12 [100 L.Ed. 891, 76 S.Ct. 585]; Wieman v. Updegraff (1952) 344 U.S. 183 [97 L.Ed. 216, 73 S.Ct. 215].)
II
We now turn to consider what should be our standard of review in evaluating the classification created by article XI, section 18.
As this court has previously noted,36 the United States Supreme Court has tended to employ a two-level test in reviewing legislative classifications under the equal protection clause. In the area of economic regulation, the high court has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. (See McDonald v. Board of Election (1969) 394 U.S. 802, 809 [22 L.Ed.2d 739, 745-746, 89 S.Ct. 1404]; McGowan v. Maryland (1961) 366 U.S. 420, 425-426 [6 L.Ed.2d 393, 398-399, 81 S.Ct. 1101].)
On the other hand, in cases involving “suspect classifications”37 or
As the above quotation indicates the United States Supreme Court has included voting in the category of rights deemed “fundamental.” Accordingly, state laws which permit or require differential treatment of those attempting to exercise this right have been “carefully and meticulously scrutinized” (Reynolds v. Sims, supra, 377 U.S. 533, 562 [12 L.Ed.2d 506, 527]) in order to determine whether the burdens imposed are “necessary to promote a compelling state interest.” (Kramer v. Union School District, supra, 395 U.S. 621, 626-627 [23 L.Ed.2d 583, 589-590]; see also Cipriano v. City of Houma, supra, 395 U.S. 701; Castro v. State of California, supra, ante, p. 223; Otsuka v. Hite, supra, 64 Cal.2d 596, 602.)
Respondents, however, contend that the reapportionment and voting rights cases are not controlling and urge us to apply the more lenient standard, traditionally associated with review of fiscal and economic regulatory measures, in evaluating petitioners’ equal protection claims. Two theories are advanced in support of this contention. Neither, we believe, has merit.
First, it is argued that the right to vote (which is termed a “political” right) is not involved in this case, and that the reapportionment and voting rights cases, which did concern this “political” right, are inap
Voting for or against a candidate for public office is obviously not precisely identical to voting for or against a ballot proposition authorizing a local legislative body to incur a specific indebtedness to finance a particular project. But neither is it wholly dissimilar. Respondents have suggested no reasons (other than their conclusionary definitional distinctions) for us to ignore the salient fact that what might be termed an “administrative” decision is made, in a bond election, by a political method closely resembling direct democracy. Nor have any reasons been presented which indicate less need for judicial scrutiny in the context of such elections. Indeed, so far as appears, all that underlies this argument is the inaccurate observation that the Supreme Court has articulated the higher equal protection standard only in cases involving elections for public office. However, as the court itself has indicated, it is the nature of the right asserted, not the type of election, which is the critical determinant.39
In any event, the argument has been foreclosed by Cipriano v. City of Houma, supra, 395 U.S. 701. Cipriano concerned an election whose purpose was not to select among candidates for a public office, but, as in the case at hand, to determine whether or not a proposed local government bond issue should be approved.40 The court perceived no distinction between the election in Cipriano and that in Kramer, which was an election to
We find respondents’ second argument no more persuasive. Pointing out that, unlike Harper, Kramer, and Cipriano, this case does not involve an absolute denial of the franchise, respondents contend that under McDonald v. Board of Elections, supra, 394 U.S. 802, the traditional equal protection test should be applied. Respondents’ reliance on McDonald is misplaced. As the court noted in Kramer, the right to vote was not at issue in McDonald, which involved merely a “claimed right to an absentee ballot.” (395 U.S. at p. 627, fn. 6 [23 L.Ed.2d at p. 589].) We have found no decision of the United States Supreme Court intimating that states may restrict or infringe voting rights, upon a mere showing of some rational relationship to a valid purpose, so long as they stop short of outright denial. To the contrary, the language of the relevant decisions is deliberately broad and encompassing. For example, in Harper, supra, the court declared: “We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. [Citations.]” (Italics added.) (383 U.S. at p. 670 [16 L.Ed.2d at p. 174].) In Williams v. Rhodes, supra, 393 U.S. 23 [21 L.Ed.2d 24], discussing state laws which imposed “burdens” on the right to vote, the court stated: “. . . the decisions of this Court have consistently held that ‘only a compelling state interest . . .’ could justify them. (393 U.S. at p. 31 [21 L.Ed.2d at p. 32].)” In short, state laws denying or diluting the right to vote are tested by the same stern standard. (See Kramer, supra, stating this proposition and citing reapportionment and voter qualification cases interchangeably.)
We are, therefore, satisfied that
A.
Primarily, respondents justify the two-thirds vote requirement as a protective device necessary to insure “municipal solvency,” promote “fiscal responsibility,” and forestall “ill-advised and excessive indebtedness.”42 Stripped of rhetoric, their contention is that it is necessary to permit a minority to hold veto power over proposed bond issues approved by a majority of the local legislative body and a majority of their fellow citizens in order to prevent such bonded indebtedness from reaching levels that would necessitate either foreclosure or repudiation. Respondents imply that the two-thirds vote requirement is all that stands between the state and either immediate financial catastrophe43 or ultimate collapse of its political subdivisions under crushing burdens of debt foolishly incurred by reckless or malevolent popular majorities. There is no support for respondents’ position. On the other hand, we find persuasive petitioners’ argument that it is no longer necessary to restrict citizens’ voting rights in order to protect society from the financially irresponsible accumulation of bonded indebtedness by local governments.
First, critics have characterized the two-thirds requirement as a “crude mechanical response to improvident overextension of public debt in the fiscally unsophisticated period of the latter Nineteenth Century.” (See Cal. Const. Revision Com., supra, p. 370.) Petitioners point out that virtually every factor which may have been relevant during the chaotic period of its enactment has since been altered dramatically. One of the most significant changes is the “great improvement in the quality and integrity of governmental and financial administration. The existence of more responsible and
The institutions of the private sector have undergone a similar evolution. The bond market was a shambles when section 18 was written; now its well ordered operations discourage unsound bond offerings. “Numerous modern procedures of fiscal administration have been developed since 1879. A host of auditing and financial accounting requirements have been written into law. [See, e.g.,
Second, other provisions of
Nor is there any evidence that California‘s two-thirds requirement (which is among the most restrictive in the nation),48 has produced greater fiscal security than may be achieved with a simple majority vote requirement. Although most states do not require a two-thirds vote, we have been referred to no data indicating more frequent bond defaults, lower credit ratings, or extravagant public projects in those states. As we have previously noted, since 1849 the State of California has been permitted to borrow in excess of its debt limit with the approval of 50 percent of those voting on a particular bond issue. (
Finally, there is impressive evidence that the two-thirds vote requirement has not so much limited total local government indebtedness as it has redirected borrowing into vehicles other than the general obligation bonds of regularly constituted political units. While the economic consequences of these alternate financing devices are substantially similar to those of voted general obligation bonds, they are not required to receive a two-thirds majority vote and, in some instances, permit long-term borrowing over which the public has no direct control at all.50
Revenue bonds are those which are dischargeable solely through revenues generated by the capital improvement system whose construction or enlargement they finance. They are not within the ambit of
A second financing pattern which has developed is the lease of an improvement by a governmental entity from a public body that has constructed or purchased it. Initially, these lessor entities were separately managed public retirement systems which financed the improvement with retirement funds on hand. Subsequently, cities and counties wishing to construct nonvoted improvements would enter into leases with nonprofit corporations (which were often organized with the active encouragement of the lessee city or county). Such corporations were able to issue tax-exempt bonds without voter approval and apply the proceeds from the bond sales to the construction of the desired project. The project was then leased to the public entity, the nonprofit corporation pledging the lease rentals as security for its bonds.
Joint powers authority financing contemplates the formation of a separate and independent authority by joint action of two preexisting governmental units under the
This phenomenon has attracted the widespread, often critical, attention of legal and financial commentators.51 Their consensus, which we accept, is that the diversion of local borrowing into novel, more costly financing methods which often entirely evade submission to elections, renders any claim that the two-thirds vote requirement insures sound fiscal policy and popular control of long-term borrowing highly dubious at best.52
We find nothing to support respondents’ grim warnings of financial disaster in the absence of a two-thirds vote requirement. We must, therefore, conclude that that provision is not necessary to insure the solvency of our local governments.
B.
A variety of other interests are asserted to be served by the extraordinary majority vote requirement. It is claimed, for example, that the state should be allowed to insist, before permitting its political subdivisions to incur bonded debt, that “a strong popular and informed public sentiment be satisfied as to the priority, the wisdom, the financial ability of the community to absorb the cost, and the public interest [in] and necessity for the creation of indebtedness for the particular improvement.” This public sentiment, it is contended, is not expressed in a majority vote; it is expressed in a two-thirds vote. We do not doubt that a two-thirds requirement is well suited to deter the forms of governmental action to which it applies, since it condi
It is explained that the necessity for this consensus stems from the nature of bonded indebtedness. We are told that long-term borrowing irrevocably commits the future revenues of a community and that such a drastic step should not be undertaken upon the will of a mere majority. However, many decisions of government at all levels are crucial and irreversible, yet this alone has never been thought a sufficient ground upon which to remove them from the democratic process. We are not persuaded that a decision to commit future tax revenues to the financing of projects whose scale and useful life make payment of their costs from current revenues impracticable or inequitable is so unique or so fraught with peril that it warrants this deprivation of voting rights.
We do not think respondents have demonstrated that bond-finance decisions are fundamentally different from many other political decisions made by a majority vote or by representatives elected by a majority vote. Even assuming, however, that respondents had done so we think their argument fails at another level. This justification for the extraordinary majority requirement rests on the premise that a decision to undertake a project such as the construction of schools and playgrounds is qualitatively different from a decision not to do so. This, in turn, is based on the assumption that spending money is a more serious matter than not spending it and, consequently, must be justified whereas frugality is self-justifying. A predisposition to thrift may serve a man well. It does not, however, justify governmental inertia, especially when government is faced with critical social problems demanding urgent and sometimes costly remedies. There is no presumption in favor of inaction, as the United States Supreme Court observed in Avery v. Midland County, supra, 390 U.S. 474, 484 [20 L.Ed.2d 45, 53]: “[W]e might point out that a decision not to exercise a function within [local government‘s] power—a decision, for example, not to build an airport or a library, or not to participate in the federal food stamp program—is just as much a decision affecting all citizens . . . as an affirmative decision.”
In sum, we do not believe that the nature of general obligation bond financing warrants diluting the votes of those who want action, in order to institutionalize a preference for the interests of those who want stasis. (Hunter v. Erickson, supra, 393 U.S. 385, 392-393 [21 L.Ed.2d 616, 622-623].)53
Nor do we believe that the two-thirds requirement may be justified as a method of protecting real property owners from additional taxes necessary to service the higher level of bonded indebtedness which it is reasonable to assume would result were bonds to be issuable upon simple majority approval. We express no opinion as to whether or in what circumstances the state may structure its election laws to accommodate the financial interests of property owners. Assuming, arguendo, this to be a legitimate state interest, we do not believe that under contemporary conditions it is so compelling as to justify depriving petitioners of their right to a fully effective vote.
The argument that a two-thirds requirement is necessary to protect property owners rests on the following assumptions: (1) That the relationship between the level of bonded debt and the property tax rate is constantly proportional; (2) that bonded debt is voted by an electorate which, by and large, does not pay property taxes and is thus undeterred by the prospect of their increase; and (3) that maintenance of low property tax rate levels will invariably be in the best short and long-term interest of property owners. While possibly accurate in the 1870‘s, none of these assumptions has been shown to be valid today.
First, the close link between general obligation indebtedness and property taxes, characteristic of the nineteenth and early twentieth century, no longer exists.54 Not only has the percentage of municipal revenues generated by the property tax declined sharply,55 but in practice, many general obligation bonds have been redeemed through revenues derived from sources, such as excise taxes and enterprise activities, other than the property tax.56
Second, the information available to us does not warrant a characterization of property owners as a beleaguered minority which would be forced to shoulder the total cost of bond-financed projects. There are indications that
Thus, the factual predicates of respondents’ contention do not exist. The probability of a property-owning minority being subjected to confiscatory taxation by the unbridled appetites of the propertyless masses is no more than “theoretically imaginable.”60 (Mine Workers v. Illinois Bar Assn. (1967) 389 U.S. 217, 224 [19 L.Ed.2d 426, 432, 88 S.Ct. 353].) No such remote dangers can justify the “immediate and crippling impact” (Williams v. Rhodes, supra, 393 U.S. 23, 33 [21 L.Ed.2d 24, 33]) on the rights of all citizens (property owners or not) who favor certain proposed governmental action, to receive equal protection of the law.
Finally, respondents advance the argument that the compulsory referendum of section 18 stimulates development of a more enlightened citizenry and provides local residents with direct control over their government. This may well be true. It is, however, a purpose equally well served by a referendum whose outcome is determined by simple majority will. There is no causal relationship (much less a necessary one) between the benefits of “participatory democracy” and extraordinary majority vote requirements.
We conclude, therefore, that the two-thirds vote requirement is not necessary to the attainment of any compelling state interest.
IV
We are unimpressed with respondents’ remaining justifications proffered for the extraordinary majority requirement. Initially we find no sig
Nor is our conclusion altered by the fact that a proposed constitutional amendment to
More fundamentally, popular approval of electoral systems which infringe an individual‘s constitutionally protected right to cast an equally weighted vote is irrelevant. “A citizen‘s constitutional rights can hardly be infringed simply because a majority of the people choose that it be. [Fn. omitted.]” (Lucas v. Colorado General Assembly, supra, 377 U.S. 713, 736-737 [12
We find no merit in the theoretical argument that there has been no violation of the equal protection clause because the elections here in issue represent an exercise of the legislative power retained by the people rather than of that delegated to the state Legislature. To describe in conceptual terms the origin of the power exercised at bond elections does not answer the question before us, which is to determine the restraints imposed on that power by the equal protection clause. The United States Supreme Court, however, has conclusively answered this argument: “[I]nsisting that a State may distribute legislative power as it desires and that the people may retain for themselves the power over certain subjects may generally be true, but these principles furnish no justification for a legislative structure which otherwise would violate the Fourteenth Amendment.” (Hunter v. Erickson, supra, 393 U.S. 385, 392 [21 L.Ed.2d 616, 623].)
Respondents press a final argument upon us. They point out that the extraordinary majority requirement of
validating it will inevitably undermine the constitutionality of all. We cannot agree.
First, there is no merit in the attempt to analogize section 18 to institutional arrangements of varied historical origin and specialized function, such as the electoral college, the allocation of two senate seats to each state regardless of population, or the unanimous jury verdict required for a criminal conviction. Efforts to justify state-imposed inequalities in voting power through reliance on analogies to other distinct institutions have met with no success in the United States Supreme Court. For example, in Gray v. Sanders, supra, 372 U.S. 368, 378 [9 L.Ed.2d 821, 829], the court declared: “We think the analogies to the electoral college, to districting and redistricting, and to other phases of the problems of representation in state or federal legislatures or conventions are inapposite. The inclusion of the electoral college in the Constitution, as the result of specific historical concerns, validated the collegiate principle despite its inherent numerical inequality, but implied nothing about the use of an analogous system by a State . . . .” (Fns. omitted.) In Reynolds v. Sims, supra, 377 U.S. 533, 573 [12 L.Ed.2d 506, 534], the court observed that: “Attempted reliance on the federal analogy appears often to be little more than an after-the-fact rationalization offered in defense of maladjusted state apportionment arrangements.” Our reaction to analogies to, for example, the treaty ratification procedure in the United States Senate is not dissimilar.
Second, many of the extraordinary majority provisions to which we are referred are readily distinguishable in that, since they apply solely to the internal procedures of legislative bodies, they involve no dilution of the individual exercise of the franchise which is in issue here. Some, such as the two-thirds required for conviction of impeachment (
Finally, those extraordinary majority vote requirements which do apply outside the legislative process are by no means uniformly invalidated by our decision today. We emphasize that while it has not been demonstrated that a two-thirds vote requirement for approval of local general obligation bonds is necessary to promote a compelling state interest, similar provisions in other contexts may meet this standard. For example, it is common to insist upon a broad consensus before altering basic political documents. (See, e.g.,
For the reasons already set forth, we hold that insofar as the constitutional provision engaging our attention (i.e., former
Since the requirement of a two-thirds vote is entirely distinct and severable from the other provisions of the section, the section remains, in all other aspects, valid and operative.
Respondents, in their return to the alternative writ, contend that, even assuming the two-thirds requirement of section 18 to be unconstitutional, the relief which petitioners request is improper. Respondents assert that, because of the procedures actually followed by the City and County of San Francisco, they have no present duties of a ministerial nature to perform in connection with either bond proposition which have not already been performed. We need not decide this question since we have determined that our decision today regarding the constitutionality of
It is now beyond dispute that the United States Constitution permits state appellate courts to restrict the application of a newly announced rule of law to future cases. (England v. Medical Examiners (1964) 375 U.S. 411, 422 [11 L.Ed.2d 440, 449, 84 S.Ct. 461]; Great Northern Ry. Co. v. Sunburst Co. (1932) 287 U.S. 358, 364-366 [77 L.Ed. 360, 366-367, 53 S.Ct. 145, 85 A.L.R. 254]. See also the historical discussion in Linkletter v. Walker (1965) 381 U.S. 618, 622-629 [14 L.Ed.2d 601, 604-608, 85 S.Ct. 1731].) “State courts have generally found state constitutions equally permissive and have frequently stated that the decision whether to apply an overruling decision retroactively or prospectively only turns on considerations of fairness and public policy. [Citations.]” (Forster Shipbuilding Co. v. County of Los Angeles (1960) 54 Cal.2d 450, 459 [6 Cal.Rptr. 24, 353 P.2d 736].) This is the rule we have adopted in California (Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850, 868 [73 Cal.Rptr. 369, 447 P.2d 609]; County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 681 [312 P.2d 680]) even though we have recognized that the purely prospective operation of a decision “temporarily preserves and applies a mistaken interpretation of the [state] Constitution. [Citation.]” (Forster Shipbuilding Co. v. County of Los Angeles, supra, 54 Cal.2d at p. 459.)
In recent years a substantial number of general obligation bond propositions have won the approval of a majority but less than two-thirds of the voters. (Scott and Hamilton, op. cit. supra, at pp. 3-5; Cal. Teachers’ Assn., Research Bull. No. 228 (Oct. 1968), Results of Tax and Bond Elections in California School Districts 1967-1968, pp. 13-25; Cal. Teachers’
This course will settle immediately the status of bond propositions on a uniform, statewide basis. It will permit local governments to propose to the electorate new bond issues, drawn to meet present community needs and to conform to present economic conditions. It will also allow voters to conduct campaigns and cast their ballots on bond propositions with full understanding, in advance, of the rules by which the outcome of the elections will be determined.
The force of these and similar considerations of public policy have impressed other courts. Thus, we find ample authority for our refusal to disturb the results of an election conducted under ground rules later held invalid (Allen v. State Board of Elections (1969) 393 U.S. 544, 571-572 [22 L.Ed.2d 1, 20-21, 89 S.Ct. 817]; Rimarcik v. Johansen, supra, 310 F.Supp. 61, 71; Jenness v. Little (N.D. Ga. 1969) 306 F.Supp. 925, 929; appeal dismissed 397 U.S. 94 [25 L.Ed.2d 81, 90 S.Ct. 820]) and for our decision to limit the retroactive effect of judicial intervention in the bond election process. (Cipriano v. City of Houma, supra, 395 U.S. 701, 706 [23 L.Ed.2d 647, 652]; see also Douglass v. County of Pike (1879) 101 U.S. 677, 687 [25 L.Ed. 968, 971-972]; Gelpcke v. City of Dubuque (1863) 68 U.S. 175, 206 [17 L.Ed. 520, 525-526].)
In each of the proceedings before us (S.F. 22706 and S.F. 22707), the alternative writ of mandate is discharged and the petition for a peremptory writ is denied.
Wright, C. J., McComb, J., Tobriner, J., and Schauer, J.,* concurred.
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
The majority tell the parties who initiated these proceedings, who used their talents and resources to seek and obtain a hearing in this court, and who invoked the constitutional principles upon which we here rely, that they are undeniably right, their concept of the law is totally vindicated—but they lose, their petition for a peremptory writ denied. This is indeed a Pyrrhic victory, or as John Dryden wrote in the 17th century: “Even victors are by victories undone.”
Few problems in both the criminal and civil fields have been fraught with more uncertainty than determination of the precise date on which newly discovered constitutional precepts become applicable. Justice Harlan referred to “the doctrinal confusion that has characterized our efforts” in this arena and the “many incompatible rules and inconsistent principles.” (Desist v. United States (1969) 394 U.S. 244, 258 [22 L.Ed.2d 248, 260, 89 S.Ct. 1030] (dissenting opinion).) Legal scholars have been as hopelessly at odds over theories of retroactivity versus prospectivity. (See, e.g., Schaefer (1967) 42 N.Y.U.L. Rev. 631, as contrasted with Haddad (1969) 60 J.Crim.L. 417.)
The federal rule was originally settled, the Supreme Court adhering to the command of
However, Sunburst made it clear that “A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law nonetheless for intermediate transactions . . . whenever injustice or hardship will thereby be averted.” (Id. at p. 364 [77 L.Ed. at p. 366].)
Thus three alternatives are available to a state court which has fashioned a new rule. It may apply the rule: (1) to acts occurring subsequent to the announcement only; (2) to acts occurring subsequent to the announcement
Only the most amorphous guidelines are available to determine which of the alternatives is appropriate in an individual case. Justice Cardozo referred to “considerations of convenience, of utility, and of the deepest sentiments of justice.” (Cardozo, The Nature of the Judicial Process (1921) 146-149). Justice Traynor spoke of “considerations of fairness and public policy.” (Forster Shipbuilding Co. v. County of Los Angeles (1960) 54 Cal.2d 450, 459 [6 Cal.Rptr. 24, 353 P.2d 736].) A federal court indicated “that retroactivity should be determined from the circumstances of the particular case, having in mind the purpose which the new rule of law seeks to accomplish and the practical weighing of the comparative benefits and evils of retroactivity.” (Hanover Shoe Inc. v. United Shoe Machinery Corp. (3d Cir. 1967) 377 F.2d 776, 789.)
I am unimpressed by the “weighing of comparative benefits and evils,” or the reasons—indeed, there is a paucity of reasons—given by the majority for denying to petitioners the fruits of their victory. The majority speak of bonds “voted upon at now-forgotten elections” (ante, p. 801). In addition to being a gratuitous reflection upon the delays of the judicial process—not markedly prolonged in this instance1—the simple fact is that these specific bond elections are not now-forgotten. They have been kept very much alive in current memory by this well-publicized litigation; both proponents and opponents at the election are eagerly awaiting the results of this lawsuit, and have undoubtedly made appropriate plans for the eventuality of a determination pro or con their position.
To invoke a prospective-only technique results in an arbitrariness toward individual litigants that is uncharacteristic of a court of justice. As Justice Harlan wrote in his dissent in Desist, it is a “truism that it is the task of this
The United States Supreme Court in Stovall v. Denno (1967) 388 U.S. 293, 301 [18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967], suggested that someone, i.e., the litigants before the court, must be given the benefit of decisions which create new rights. The high court held: “We recognize that Wade and Gilbert are, therefore, the only victims of pretrial confrontations in the absence of their counsel to have the benefit of the rules established in their cases. That they must be given that benefit is, however, an unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum. Sound policies of decision-making, rooted in the command of
Other authorities have advanced the theory that prospective overruling destroys incentive for appeal, and if it becomes a frequent policy, it will tend to deter counsel from presenting “issues involving renovation of unsound or outmoded legal doctrines.” (Mishkin, Foreword, The Supreme Court 1964 Term, 79 Harv.L.Rev. 56, 61.)
A number of state courts have adopted substantial changes in the law and applied the new doctrine to the case at hand while otherwise giving it only prospective application. (See, e.g., Balts v. Balts (1966) 273 Minn. 419 [142 N.W.2d 66, 75].) California adopted this procedure when it eliminated governmental immunity (Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211 [11 Cal.Rptr. 89, 359 P.2d 457]) and again when it imposed liability upon institutions financing tract developments. (Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850 [73 Cal.Rptr. 369, 447 P.2d 609].)
In short, the majority subvert an otherwise irrefutable opinion by denying equable application of its benefits. The aggrieved parties who knocked on our door are turned away with approbation but without assistance. This, I believe,
I would issue the peremptory writ.
Mr. Justice Peters has authorized me to say that he, too, would issue the writ.