Filed 1/4/16
IN THE SUPREME COURT OF CALIFORNIA
HOWARD JARVIS TAXPAYERS )
ASSOCIATION et al., )
)
Petitioners, )
) S220289
v. )
)
ALEX PADILLA, as Secretary of )
State, etc., )
)
Respondent; )
)
LEGISLATURE OF THE STATE OF )
CALIFORNIA, )
)
Real Party in Interest. )
____________________________________)
In 2014, the California Legislature sought to place on the general election
ballot a nonbinding advisory question, Proposition 49. The measure would have
asked the electorate whether Congress should propose, and the Legislature ratify, a
federal constitutional amendment overturning the United States Supreme Court
decision Citizens United v. Federal Election Comm’n (2010) 558 U.S. 310.
In response to a petition for writ of mandate urging the unconstitutionality
of the Legislature‘s action, we issued an order to show cause and directed the
Secretary of State to refrain from taking further action in connection with
placement of Proposition 49 on the ballot. Our action did not rest on a final
determination of Proposition 49‘s lawfulness. Instead, we concluded ―the
proposition‘s validity is uncertain‖ and the balance of hardships from permitting
an invalid measure to remain on the ballot, as against delaying a proposition to a
future election, weighed in favor of immediate relief. (See American Federation
of Labor v. Eu (1984) 36 Cal.3d 687, 697.)
We now resolve the merits of Proposition 49‘s constitutionality. We
conclude: (1) as a matter of state law, the Legislature has authority to conduct
investigations by reasonable means to inform the exercise of its other powers;
(2) among those other powers are the power to petition for national constitutional
conventions, ratify federal constitutional amendments, and call on Congress and
other states to exercise their own federal article V powers; (3) although neither
constitutional text nor judicial precedent provide definitive answers to the
question, long-standing historical practice among the states demonstrates a
common understanding that legislatures may formally consult with and seek
nonbinding input from their constituents on matters relevant to the federal
constitutional amendment process; (4) nothing in the state Constitution prohibits
the use of advisory questions to inform the Legislature‘s exercise of its article V-
related powers; and (5) applying deferential review, Proposition 49 is reasonably
related to the exercise of those powers and thus constitutional. We deny the
instant petition for a writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
In Citizens United v. Federal Election Comm’n, supra, 558 U.S. 310, a
divided United States Supreme Court invalidated federal election law restrictions
on the political speech of corporations, holding that a speaker‘s identity as a
corporation, as opposed to natural person, could not justify greater regulation of
speech than the First Amendment would have otherwise permitted. (Id. at pp. 319,
365.) In the few years since its issuance, Citizens United‘s holding concerning the
speech rights of corporations has generated considerable democratic debate,
2
receiving criticism in the presidential State of the Union address,1 giving rise to
resolutions in Congress to amend the Constitution,2 and sparking calls for
reconsideration within the United States Supreme Court itself.3 Many have agreed
with the Supreme Court majority, while others have concluded the Constitution
must be amended to permit renewed restraints on corporate involvement in
popular elections.
The Legislature first joined issue with Citizens United in Assembly Joint
Resolution No. 1, introduced in 2012 and adopted by both houses of the
Legislature in 2014. (Assem. Joint Res. No. 1, Stats. 2014 (2013–2014 Reg.
Sess.) res. ch. 77.) The resolution declared: ―Corporations are legal entities that
governments create and the rights that they enjoy under the United States
Constitution should be more narrowly defined than the rights afforded to natural
persons.‖ (Ibid.) Acknowledging Citizens United‘s holding to the contrary, the
resolution exercised the Legislature‘s federal constitutional power to ―apply to the
United States Congress to call a constitutional convention for the sole purpose of
proposing an amendment to the United States Constitution that would limit
corporate personhood for purposes of campaign finance and political speech and
would further declare that money does not constitute speech and may be
legislatively limited.‖ (Assem. Joint Res. No. 1, Stats. 2014 (2013–2014 Reg.
Sess.) res. ch. 77; see U.S. Const., art. V [―The Congress . . . on the application of
1 President Barack H. Obama, State of the Union address to Congress (Jan.
27, 2010) 156 Congressional Record–House H415 (daily ed. Jan. 27, 2010).
2 Senate Joint Resolution No. 19, 113th Congress, 1st Session (2013); see
Senate Report No. 113–223, 1st Session, pages 2–3 (2013).
3 See American Tradition Partnership v. Bullock (2012) 567 U.S. ___, ___
[183 L.Ed.2d 448, 448–449, 132 S.Ct. 2490, 2491–2492] (dis. opn. of Breyer, J.)
(dissent joined by Ginsburg, Sotomayor & Kagan, JJ.).
3
the legislatures of two-thirds of the several states, shall call a convention for
proposing amendments . . . .‖].)
Separately, the Legislature enacted Senate Bill No. 1272 (2013–2014 Reg.
Sess.) (Senate Bill No. 1272), ―[a]n act to submit an advisory question to the
voters relating to campaign finance . . . .‖ (Stats. 2014, ch. 175.) A lengthy
preamble decried Citizens United, noted the article V process for amending the
United States Constitution, and asserted ―[t]he people of California and of the
United States have previously used ballot measures as a way of instructing their
elected representatives about the express actions they want to see them take on
their behalf, including provisions to amend the United States Constitution.‖ (Stats.
2014, ch. 175, § 2, subd. (m); see generally id., § 2.) The measure ―call[ed] a
special election to be consolidated with the November 4, 2014, statewide general
election‖ (Legis. Counsel‘s Dig., Sen. Bill No. 1272 (2013–2014 Reg. Sess.); see
Stats. 2014, ch. 175, § 3) and directed the Secretary of State to submit to voters at
that election an advisory question asking whether Congress should propose, and
the Legislature ratify, a constitutional amendment overturning Citizens United,
and thereafter to submit the results to Congress (Stats. 2014, ch. 175, § 4). The
measure became law in July 2014, after both houses passed it and the Governor
declined to sign or veto it. (See Cal. Const., art. IV, § 10, subd. (b)(3) [authorizing
bills to become statutes after gubernatorial inaction].)
Subsequently, then Secretary of State Debra Bowen designated the advisory
question Proposition 49 and began preparing ballot materials. The proposition
was to read: ―Shall the Congress of the United States propose, and the California
Legislature ratify, an amendment or amendments to the United States Constitution
to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310,
and other applicable judicial precedents, to allow the full regulation or limitation
of campaign contributions and spending, to ensure that all citizens, regardless of
4
wealth, may express their views to one another, and to make clear that the rights
protected by the United States Constitution are the rights of natural persons only?‖
(Stats. 2014, ch. 175, § 4, subd. (a).)
Petitioners Howard Jarvis Taxpayers Association and Jon Coupal
(collectively, Howard Jarvis) promptly filed a petition for writ of mandate in the
Third District Court of Appeal, seeking to prevent Secretary Bowen from
proceeding with placement of Proposition 49 on the November 2014 ballot. A
divided Court of Appeal denied relief.
Howard Jarvis next filed an original emergency petition for writ of mandate
in this court. After expedited briefing, we issued an order to show cause and
stayed Secretary Bowen from taking further actions in connection with Proposition
49 until after a final decision, effectively removing the advisory question from the
November 2014 ballot. The order explained, ―[t]ime constraints require the court
to decide immediately whether to permit Proposition 49 to be placed on the
November 4, 2014, ballot pending final resolution of this matter.‖ A five-justice
majority concluded Proposition 49‘s validity was uncertain and the cost of
postponing a potentially lawful proposition to a later ballot, a course the
Legislature itself had contemplated in an earlier version of the bill,4 was
outweighed by the cost of permitting a potentially invalid proposition to reach the
ballot. ― ‗The presence of an invalid measure on the ballot steals attention, time
and money from the numerous valid propositions on the same ballot. It will
confuse some voters and frustrate others, and an ultimate decision that the measure
is invalid, coming after the voters have voted in favor of the measure, tends to
4 See Senate Bill No. 1272 as amended March 28, 2014, section 1 (calling a
special election in conjunction with the November 2016 general election).
5
denigrate the legitimate use of the initiative procedure.‘ (American Federation of
Labor v. Eu (1984) 36 Cal.3d 687, 697.)‖5
Our actions in August 2014 resolved whether Proposition 49 could be
placed on the November 2014 ballot. Senate Bill No. 1272 directs only placement
on that ballot (Stats. 2014, ch. 175, §§ 3–4), and this case is thus technically moot.
But whether the Legislature ever has power to place advisory questions on a
statewide ballot is important and undecided, and in the event we were to conclude
Senate Bill No. 1272 was indeed constitutional, the Legislature could pass an
identical measure directing placement of the same advisory question on a future
ballot. In response to our order to show cause, Howard Jarvis and real party in
interest the State Legislature of California have briefed the larger questions the
petition raises: whether legislative advisory questions are ever permissible, and
whether in particular Proposition 49 is permissible or should be enjoined from
placement on any future statewide ballot. Notwithstanding that the passage of an
election cycle has interposed mootness as a potential obstacle to resolving a
significant election law issue, we conclude retaining jurisdiction and addressing
the merits is the better course here. (See Independent Energy Producers Assn. v.
McPherson (2006) 38 Cal.4th 1020, 1024; Costa v. Superior Court (2006) 37
Cal.4th 986, 994, 1005.)
5 Justice Liu issued a separate concurring statement defending the decision to
provisionally forestall a vote on Proposition 49, while Chief Justice Cantil-
Sakauye dissented from the portion of the order granting a stay, maintaining that
interim relief was unwarranted.
6
DISCUSSION
I. Proposition 49 and the State Legislature’s Power to Investigate
Our Constitution vests ―[t]he legislative power of this State . . . in the
California Legislature which consists of the Senate and Assembly . . . .‖ (Cal.
Const., art. IV, § 1.) It is in the nature of state constitutions that they, unlike the
federal Constitution, generally do not grant only limited powers. (Marine Forests
Society v. California Coastal Com. (2005) 36 Cal.4th 1, 29.) Consequently,
―unlike the United States Congress, which possesses only those specific powers
delegated to it by the federal Constitution, it is well established that the California
Legislature possesses plenary legislative authority except as specifically limited
by the California Constitution.‖ (Id. at p. 31.) Lying at the core of that plenary
authority is the power to enact laws. (California Redevelopment Assn. v.
Matosantos (2011) 53 Cal.4th 231, 254.) It has been said that pursuant to that
authority, ―[t]he Legislature has the actual power to pass any act it pleases,‖
subject only to those limits that may arise elsewhere in the state or federal
Constitutions. (Nougues v. Douglass (1857) 7 Cal. 65, 70.)
Although the Legislature notes in passing that Proposition 49 resulted from
a statute, it does not rest its argument for constitutionality on the syllogism that the
legislative power includes the power to enact statutes, Senate Bill No. 1272 takes
the form of an enacted statute, and thus for that reason alone the bill and
Proposition 49 are within a constitutional source of power. Instead, the
Legislature argues it has the inherent power to conduct an investigation in order to
select the wisest policy course. Pursuant to that implied investigative power, the
7
Legislature contends, it may enact a statute placing an advisory question before
the voters.6
We have since the early days of statehood recognized the act of creating a
legislature imbues that body with certain implied authority characteristic of
parliaments: ―A legislative assembly, when established, becomes vested with all
the powers and privileges which are necessary and incidental to a free and
unobstructed exercise of its appropriate functions. These powers and privileges
are derived not from the Constitution; on the contrary, they arise from the very
creation of a legislative body, and are founded upon the principle of self
preservation.‖ (Ex parte D. O. McCarthy (1866) 29 Cal. 395, 403.) The scope
and nature of these powers is ―to be ascertained by a reference to the common
parliamentary law.‖ (Ibid.) Many or most of a parliament‘s common law powers
relate to matters of self-regulation, such as determining membership and
establishing internal rules of procedure (see id. at pp. 403–404), and are not
relevant here. One, however, is: the inherent power ―[t]o investigate, by the
testimony of witnesses or otherwise, any subject or matter, in reference to which
[a legislature] has power to act.‖ (Id. at p. 404, italics omitted.)
The principal function of a legislature is ―to enact wise and well-formed
and needful laws‖ (In re Battelle (1929) 207 Cal. 227, 240), but a legislature
cannot exercise sound judgment without information. Accordingly, ―the necessity
of investigation of some sort must exist as an indispensable incident and auxiliary
to the proper exercise of legislative power.‖ (Id. at p. 241; see Special Assembly
Int. Com. v. Southard (1939) 13 Cal.2d 497, 503 [the power to enact legislation
6 Because we conclude the investigative power permits advisory questions in
connection with potential federal constitutional amendments, we express no
opinion about other potential sources of authority for advisory questions.
8
― ‗necessarily presupposes that the members of each house of the legislature must
investigate the necessity for legislation‘ ‖].) The details of how this implied power
is to be exercised are consigned to the Legislature‘s discretion in the first instance:
― ‗The ascertainment of pertinent facts for legislation is within the power of the
lawmaking department of government. When a legislative body has a right to do
an act it must be allowed to select the means within reasonable bounds.‘ ‖ (Parker
v. Riley (1941) 18 Cal.2d 83, 91; see also id. at p. 90 [―Intelligent legislation upon
the complicated problems of modern society is impossible in the absence of
accurate information on the part of the legislators, and any reasonable procedure
for securing such information is proper.‖].)
The investigative power is not unlimited. While the Legislature‘s powers
and functions are extensive (see Carmel Valley Fire Protection Dist. v. State of
California (2001) 25 Cal.4th 287, 299), they must share space with powers
reserved to the executive and judicial branches. Although the Legislature‘s
activities can overlap with the functions of other branches to an extent, the
Legislature may not use its powers to ―defeat or materially impair‖ the exercise of
its fellow branches‘ constitutional functions, nor ―intrude upon a core zone‖ of
another branch‘s authority. (Marine Forests Society v. California Coastal Com.,
supra, 36 Cal.4th at p. 45.) The investigative power, no less than any other, may
not be used to trench upon matters falling outside the legislative purview.
Even aside from separation of powers concerns, the investigative power
permits inquiry only into those subjects ―in reference to which [the Legislature]
has power to act.‖ (Ex parte D. O. McCarthy, supra, 29 Cal. at p. 404, italics
omitted.) Investigation is permitted as a necessary aid to the execution of other
legislative powers, not as an expansion of matters with respect to which the
Legislature may act. Where those other powers are subject to limit, so too an
investigation in support of them may be constrained. (See Special Assembly Int.
9
Com. v. Southard, supra, 13 Cal.2d at p. 504 [― ‗when the power to legislate
ceases, then the power to investigate for the purpose of aiding the legislature in
exercising this power ceases, or stated another way, when the main power of
legislating dies the incidental or implied power dies with it‘ ‖].) The investigative
power, constitutionally implied as necessary for the execution of the Legislature‘s
other powers, does not stand as an unbounded, freestanding power in its own right.
Finally, while the method of investigation is for the Legislature to choose in
its broad discretion, within reason (Parker v. Riley, supra, 18 Cal.2d at pp. 90–91),
we do not foreclose the possibility limits may arise from other constitutional
provisions and the values they embrace.
Given these constraints, to determine whether a particular legislative action
is authorized as an exercise of investigative power, we must in the first instance
ascertain whether a nexus exists between the matter investigated and some
potential action the Legislature has authority to undertake. Senate Bill No. 1272
seeks to conduct a statewide plebiscite on a proposed federal amendment and
deliver its results to Congress. (Id., § 4, subds. (a), (b).) The Legislature contends
the plebiscite should be understood as part of an investigation into how and
whether to exercise the Legislature‘s powers in connection with a potential future
federal constitutional amendment. Accordingly, we examine next the extent of the
role the federal Constitution contemplates for state legislatures in the amendment
process.
II. State Legislatures and Federal Constitutional Amendment
The federal Constitution vests state legislatures with certain powers and
duties in connection with amendments to the federal Constitution. (See U.S.
Const., art. V (article V).) Article V provides in relevant part: ―The Congress,
whenever two-thirds of both houses shall deem it necessary, shall propose
amendments to this Constitution, or on the application of the legislatures of two-
10
thirds of the several states, shall call a convention for proposing amendments,
which, in either case, shall be valid to all intents and purposes, as part of this
Constitution, when ratified by the legislatures of three-fourths of the several states,
or by conventions in three-fourths thereof, as the one or the other mode of
ratification may be proposed by the Congress . . . .‖ This ―unwieldy and cumbrous
machinery‖ (Barron v. Baltimore (1833) 32 U.S. 243, 250) for altering the
Constitution involves a two-stage process—proposal and ratification—with two
paths available at each stage. In the first stage, proposal, either Congress or a
national convention called for the purpose may propose an amendment or
amendments. In the second stage, ratification, a supermajority of the several
states, either through their legislatures or state conventions, must approve the
proposal for it to become law. (See United States v. Sprague (1931) 282 U.S. 716,
730; Bramberg v. Jones (1999) 20 Cal.4th 1045, 1056.)
The Constitution identifies two explicit roles for state legislatures, one at
each stage. At the proposal stage, a state legislature may apply to Congress for the
calling of a national convention. (See, e.g., Sen. Joint Res. No. 23, Stats. 1935
(1935 Reg. Sess.) res. ch. 145, pp. 2713–2714 [calling for a convention to adopt a
federal amendment permitting congressional regulation of intrastate commerce];
Sen. Joint Res. No. 25, Stats. 1911 (1911 Reg. Sess.) res. ch. 73, pp. 2183–2184
[calling for a convention to adopt a federal amendment providing for the direct
election of Senators].) At the ratification stage, if Congress chooses the legislative
ratification route, a state legislature may assent to, or reject, an amendment.
(Hawke v. Smith, No. 1 (1920) 253 U.S. 221, 226–228; see, e.g., Sen. Joint Res.
No. 22, Stats. 1971 (1971 Reg. Sess.) res. ch. 45, pp. 4161–4162 [ratifying the
26th Amend.].) All but one of the 15 amendments to the federal Constitution
adopted since California‘s statehood have been submitted to state legislatures for
approval.
11
If instead Congress chooses the state convention ratification route, as it did
for the Twenty-first Amendment repealing Prohibition, state legislatures may still
assume a role. Article V conveys power as much through ―what is reasonably
implied‖ as through ―what is expressed.‖ (Dillon v. Gloss (1921) 256 U.S. 368,
373.) It grants to Congress and state legislatures those powers ―necessary and
incidental‖ to the carrying out of explicitly required tasks. (State ex rel. Donnelly
v. Myers (Ohio 1933) 186 N.E. 918, 918; see Dillon, at pp. 373–376; State ex rel.
Tate v. Sevier (Mo. 1933) 62 S.W.2d 895, 898.)7 When Congress submitted the
repeal of Prohibition to state conventions, state legislatures were implicitly
charged with establishing the mechanics of the conventions. (State ex rel. Tate, at
p. 898; State ex rel. Donnelly, at p. 918.) Legislatures across the country enacted
legislation establishing how delegates were to be chosen and when and where
conventions would meet. (Brown, Ratification of the Twenty-first Amendment to
the Constitution of the United States (1938) pp. 521–700 [collecting laws]; see
Stats. 1933, ch. 149, pp. 598–602 [establishing the procedures for Cal.‘s
convention to ratify the 21st Amend. to the U.S. Const.].)
The several states have never successfully called for a constitutional
convention. To date, each of the 27 federal amendments is the product of a
proposal by Congress. But this does not mean state legislatures can play no part
until ratification. Legislatures are instituted with the inherent power to issue
resolutions (Jefferson, A Manual of Parliamentary Practice (1st ed. 1801) § XXI),
7 See also The Federalist No. 44 (Cooke ed., 1961) pages 304–305 (Madison)
(―No axiom is more clearly established in law, or in reason, than that wherever the
end is required, the means are authorised; wherever a general power to do a thing
is given, every particular power necessary for doing it is included‖); The
Federalist No. 33, supra, at page 204 (Hamilton) (―What is a power, but the ability
or faculty of doing a thing? What is the ability to do a thing, but the power of
employing the means necessary to its execution?‖).
12
statements that ―declare[] policy or entreat[] action‖ but without the binding force
of law (American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 712). From
the earliest days of the Republic, state legislatures have used that authority to press
Congress to wield its own article V proposal power. Unlike the convention power,
these resolutions have proven instrumental in reshaping the federal Constitution
through amendment; beginning with the very first post-Bill of Rights amendment,
one can find their influence underlying the Constitution‘s evolution.8
In 1793, the legislatures of Massachusetts and Virginia passed resolutions
appealing to their representatives in Congress for a constitutional amendment
overturning the United States Supreme Court‘s narrow construction of state
sovereign immunity in Chisholm v. Georgia (1793) 2 U.S. 419. (See New
Hampshire v. Louisiana (1883) 108 U.S. 76, 88 [Mass. res.]; Florida v. Georgia
(1855) 58 U.S. 478, 519–520 (dis. opn. of Campbell, J.) [Va. res.].) Senator Caleb
Strong of Massachusetts responded by moving that Congress propose such an
amendment (Florida v. Georgia, at p. 520; 4 Annals of Congress (3d. Cong. 1794)
pp. 25, 29–30), and the first post-Bill of Rights amendment was ratified in 1795
(U.S. Const., 11th Amend.). Similar resolutions preceded the Twelfth
8 At one point, the Drafters of the federal Constitution contemplated a more
direct role for the states in initiating change. The penultimate version of article V
would have granted the state legislatures themselves the power to propose
amendments, but in the final days of the 1787 convention that power was excised
in favor of the power to call for a convention. (See 2 Records of the Federal
Convention of 1787 (Farrand edit., 1966 ed.) pp. 559, 629–630.) The elimination
of a direct power to propose amendments has given rise to the current practice,
whereby state legislatures resolve to Congress that it should act, and Congress in
turn decides whether to invoke its article V proposal power. Such legislative
resolutions are firmly ensconced in our constitutional traditions and, we have
observed, are fully consistent with article V. (American Federation of Labor v.
Eu, supra, 36 Cal.3d at p. 707.)
13
Amendment, ratified in 1804. (See 13 Annals of Congress (7th Cong. 1st Sess.
1802) pp. 95–96 [Mass. res.]; 11 Annals of Congress (8th Cong. 1st Sess. 1803)
pp. 509, 602–603, 1285 [N.Y. res.]; id. at p. 629 (1802) [N.C. res.]; id. at p. 472
(1802) [Vt. res.].)
Aside from changes wrought by the Civil War, the Constitution remained
static for the next century, but when the next wave of changes came, state
legislative resolutions were again at the forefront. California‘s Legislature first
urged the direct election of senators to Congress in 1874, and did so again in 1893
and 1900.9 Numerous other states took similar action; by 1896, the Idaho,
Indiana, Iowa, Kansas, Ohio, Oregon, Wisconsin and Wyoming Legislatures had
joined California in instructing their congressional representatives in favor of
pursuing a federal amendment. (Sen. Rep. No. 54–530, 1st Sess., p. 9 (1896).)
Ultimately, dozens of states would join the chorus. (See Hall, The History and
Effect of the Seventeenth Amendment (1936) pp. 221–223, 512–528; Haynes, The
Election of Senators (1906) pp. 108–109.) These pleas spurred action in both
houses of Congress. (See, e.g., Ames, The Proposed Amendments to the
Constitution of the United States During the First Century of Its History (1897)
pp. 61–62 [noting the House of Representatives‘ passage of a proposed
amendment as a response to repeated state legislative resolutions requesting one];
9 See Assembly Concurrent Resolution No. 9 (1873–1874 Reg. Sess.)
resolution chapter 20, page 973; Assembly Joint Resolution No. 7 (1893 Reg.
Sess.) resolution chapter 15, page 620; Senate Joint Resolution No. 2 (1900 Ex.
Sess.) resolution chapter 7, pages 27–28. In 1911, the Legislature changed tacks
and invoked its express article V powers, applying for a constitutional convention
to propose an amendment providing for the direct election of Senators. (Sen. Joint
Res. No. 25, Stats. 1911 (1911 Reg. Sess.) res. ch. 73, pp. 2183–2184; see
Remarks of Sen. Jones, 46 Cong. Rec. 2770 (1911) [―possibly Idaho and
California got tired of knocking at the door of the Senate and concluded that they
would take their own method‖].)
14
45 Cong. Rec. 7109–7112 (1910) [introduction of proposed amend. by Sen. Owen
of Okla. following a resolution from his state legislature requesting one].) By
1913, direct election of senators was a part of the federal Constitution. (U.S.
Const., 17th Amend.)
State resolutions calling for a congressionally proposed federal amendment
also preceded the Nineteenth Amendment, which extended suffrage to women.
(O‘Connor, The History of the Women’s Suffrage Movement (1996) 49 Vand.
L.Rev. 657, 667.) The same was true in advance of the Twenty-first Amendment,
repealing Prohibition. (E.g., Conn. Pub. Acts 1931, ch. 272, p. 285, § 1.)
State pressure for constitutional change fails far more than it succeeds.
Over the years, state legislatures have submitted thousands of resolutions, but
Congress has proposed only a few dozen amendments. For example, state
legislatures disturbed by the United States Supreme Court‘s reapportionment
decisions10 responded with a mixture of article V convention calls and state
resolutions requesting that Congress itself propose a federal amendment restoring
to the states broad power over apportionment. Ten states asked for Congress to
propose an amendment, while one dozen exercised their own power to call for a
convention. (Kyvig, Explicit & Authentic Acts (1996) p. 374 & fn. 14.)
Ultimately, no amendment emerged from Congress, and an insufficient number of
convention calls were submitted to require a national convention.
As the successful Seventeenth Amendment movement and unsuccessful
reapportionment movement demonstrate, the use of a direct convention call and an
10 See Lucas v. Colorado Gen. Assembly (1964) 377 U.S. 713; Roman v.
Sincock (1964) 377 U.S. 695; Davis v. Mann (1964) 377 U.S. 678; Maryland
Committee v. Tawes (1964) 377 U.S. 656; WMCA, Inc. v. Lomenzo (1964) 377
U.S. 633; Reynolds v. Sims (1964) 377 U.S. 533; Baker v. Carr (1962) 369 U.S.
186.
15
entreaty to Congress to propose an amendment are not mutually exclusive
approaches. Just as different state legislatures may elect one route or the other to
constitutional change, so a particular state legislature may prefer a multi-front
approach and take both paths simultaneously. For example, in June 1935, with the
country in the throes of the Depression, the Legislature concluded reform of
federal securities and bonds taxation to ensure wealthy stock- and bondholders
bore a greater share of the costs of government was urgently needed. The
Legislature passed a resolution calling on Congress to propose a federal
amendment limiting tax exemptions for these forms of property. (Sen. Joint Res.
No. 21, Stats. 1935 (1935 Reg. Sess.) res. ch. 108, p. 2669.) Within weeks, it also
used its direct federal power to call for a constitutional convention on the same
subject. (Sen. Joint Res. No. 22, Stats. 1935 (1935 Reg. Sess.) res. ch. 144,
pp. 2712–2713.)
III. The Use of Advisory Questions to Facilitate the Exercise of
Article V-related Powers
Text and tradition thus firmly establish a state legislature‘s power to
petition for and participate in federal constitutional change, by proposing a
national convention for the consideration of an amendment, by issuing a resolution
calling on Congress to itself propose an amendment, by deciding whether to ratify
amendments that emerge from either of these paths, and by establishing ground
rules in the event ratification is to be by state convention. If a state legislature can
exercise these powers, that a legislature can also avail itself of implied
investigative powers to explore the wisdom or desirability of choosing one or
another course of action necessarily follows. (See Parker v. Riley, supra, 18
Cal.2d at pp. 90–91; In re Battelle, supra, 207 Cal. at pp. 240–241.)
As noted, however, the state law investigative power is not unbounded.
Any investigation must be tethered to the exercise of other established legislative
16
powers, and the method chosen in a particular instance must be reasonable. The
issue we face is whether the Legislature may pose to the electorate a single
advisory question concerning the People‘s support for a federal constitutional
amendment. Its resolution depends on the answer to two sub-questions. First, in
the abstract, does anything in the text or structure of the state or federal
Constitutions preclude the Legislature from posing an advisory question when
exercising its own article V authority or entreating other bodies with article V
authority (Congress and fellow state legislatures) to act?11 Second, if there is no
bar, is the specific question before us today, Proposition 49, a reasonable exercise
of that implied state investigative power?
A. The Role in a Republic of Representative Consultation with
the People
The texts of the state and federal Constitutions are silent on the issue we
face. The state investigative power is, as we have discussed, an inherent but
implicit power of a legislature. The state Constitution does not otherwise clearly
address the matter. The federal Constitution is even more terse: ―As a rule the
Constitution speaks in general terms, leaving Congress to deal with subsidiary
matters of detail as the public interests and changing conditions may require; and
Article V is no exception to the rule.‖ (Dillon v. Gloss, supra, 256 U.S. at p. 376,
fn. omitted.) Regarding what state legislatures may do when carrying out their
article V roles, the federal Constitution leaves the scope of the powers and their
limits unarticulated.
11 Because Proposition 49 relates solely to the exercise of power in
connection with article V, we reserve for another day whether, in support of other
powers not implicated here, an advisory ballot measure would be a permissible
means of legislative investigation.
17
As for precedent, in our past decisions elucidating the constitutional
principles that govern legislative investigations we have not been called upon to
determine whether the investigative power may include the enactment of a statute
placing an advisory measure on the statewide ballot. (Cf. Parker v. Riley, supra,
18 Cal.2d at p. 91 [approving formation of an independent commission]; In re
Battelle, supra, 207 Cal. at p. 241 [approving formation of investigative
committees]; Ex parte D. O. McCarthy, supra, 29 Cal. at p. 404 [approving
summoning of witnesses].)
Where neither text nor precedent affords guidance, sometimes a ―page of
history is worth a volume of logic.‖ (New York Trust Co. v. Eisner (1921) 256
U.S. 345, 349 (maj. opn. of Holmes, J.); see Dyer v. Blair (N.D.Ill. 1975) 390
F.Supp. 1291, 1303–1307 [looking to historical practice to understand the proper
scope of state legislative power in connection with federal constitutional
amendments].) The history of legislative consultation with the people, and in
particular the historical use of advisory questions to inform judgments concerning
federal constitutional matters, is illuminating here.
In 1721, noted British Whig and republican Thomas Gordon, writing
pseudononymously as Cato, declared: ―[T]he difference between free and
enslaved countries lies principally here, that in the former, their magistrates must
consult the voice and interest of the people; but in the latter, the private will,
interest, and pleasure of the governors, are the sole end and motives of their
administration.‖ (1 Trenchard & Gordon, Cato‘s Letters (Hamowy edit., 1995)
No. 38 (July 22, 1721) The Right and Capacity of the People to judge of
Government (Gordon) p. 272.)12 The seeds of a practice of consultation, the
12 Cato‘s Letters, a series of republican critiques of tyranny and defenses of
liberty and free speech, were broadly circulated and heavily influential among this
(footnote continued on next page)
18
nonbinding solicitation of the people‘s views to inform legislative judgments on
significant matters, were planted in England in the 17th century. Initially, at least,
the practice focused as much on the shaping of public opinion as its solicitation:
―With the development of popular sovereignty in the 1640s, various members of
Parliament opened communications with constituents to gain popular support for
Parliamentary measures directed against the King.‖ (Morgan, Inventing the
People (1988) p. 220.) By the 18th century, however, a more genuine interest in
popular views could be found; members of the House of Commons ―often‖ would
delay action ―until they had consulted their constituents.‖ (Gibbons, Ideas of
Political Representation in Parliament 1651–1832 (1914) p. 25; see 1 Cato‘s
Letters, at p. 271 [―[O]ur records afford instances, where the House of Commons
have declined entering upon a question of importance, till they had gone into the
country, and consulted their principals, the people: So far were they from thinking
that private men had no right to meddle with government.‖].)
Consultation shortly took root in the colonies and soon became ―much
more an American technique than a British one.‖ (Reid, The Concept of
Representation in the Age of the American Revolution (1989) p. 86.) In New
York and Massachusetts, consultation flourished; occasionally it was resorted to
even in other colonies such as Pennsylvania that did not have an established town
meeting structure through which to assess the popular will. (Id. at pp. 86–95.)
When the Continental Congress was faced with its most momentous decision in
the spring of 1776, it did not act unilaterally, but instead ―delayed its vote on
(footnote continued from previous page)
nation‘s founding generation. (Bailyn, The Origins of American Politics (1968)
pp. 53–55; Rossiter, Seedtime of the Republic: The Origin of the American
Tradition of Political Liberty (1953) pp. 141–142, 357.)
19
Independence by three weeks ‗to give an Oppertunity [sic] to the Delegates from
those Colonies, which had not yet given Authority to adopt this decisive Measure,
to consult their Constituents.‘ ‖ (Maier, American Scripture: Making the
Declaration of Independence (1997) p. 67 [quoting a letter from Maryland‘s
congressional representatives]; see Kruman, Between Authority & Liberty (1997)
p. 77.) Maryland‘s delegates desired ― ‗the fair and uninfluenced Sense of the
People‘ on Independence‖ and asked their colonial assembly to ― ‗endeavour to
collect the opinion of the people at large in some Manner or other.‘ ‖ (Maier, at
p. 67.) So too Massachusetts; there, the assembly asked every town to hold a
special meeting, debate whether to declare independence, and advise its
representatives where its people stood. (Id. at p. 59; see Luce, Legislative
Principles (1930) p. 570; Reid, at p. 102.) And in 1780, New York‘s assembly
sought popular instruction concerning whether to draft a colonial constitution.
(Kruman, Between Authority & Liberty, supra, at p. 77.) Pre-constitutional
America thus had an established tradition whereby the people‘s representatives
could, if they so chose, solicit the people‘s views to inform momentous decisions.
The framers of the federal Constitution likewise accorded the people‘s
views a foundational role. (See The Federalist No. 22, supra, at p. 146 (Hamilton)
[the consent of the people is the ―pure original fountain of all legitimate
authority‖]; The Federalist No. 49, supra, at p. 339 (Madison) [―the people are the
only legitimate fountain of power‖].) The First Amendment, Virginia
Representative James Madison explained, ensured ―the people may therefore
publicly address their representatives[,] may privately advise them, or declare their
sentiments by petition to the whole body; in all these ways they may communicate
their will.‖ (1 Annals of Congress (1st Cong. 1789) p. 766.) These popular views,
Alexander Hamilton wrote, should matter (up to a point): ―The republican
principle demands, that the deliberate sense of the community should govern the
20
conduct of those to whom they entrust the management of their affairs; but it does
not require an unqualified complaisance to every sudden breese of passion, or to
every transient impulse which the people may receive from the arts of men, who
flatter their prejudices to betray their interests.‖ (The Federalist No. 71, supra, at
p. 482 (Hamilton).) The opinion of Thomas Gordon as Cato that in a free nation
representatives could and should ― ‗consult the Voice and Interest of the People‘ ‖
was one ―[a]ll [the Founders] could agree with.‖ (1 The Founder‘s Constitution
(Kurland & Lerner edits., 1987) p. 41.) The founding generation gave proof of
their principles when they submitted the Constitution, not to the state legislatures,
but to popular conventions for ratification. (U.S. Const., art. VII; see The
Federalist No. 43, supra, at p. 296 (Madison) [―The express authority of the
people alone could give due validity to the Constitution.‖]; Remarks of Col.
Mason, 2 Records of the Federal Convention of 1787, supra, at p. 88 [the
Constitution must be submitted ―[t]o the people with whom all power remains that
has not been given up in the Constitutions derived from them‖].)
Although this history does not clearly delineate the permissible means of
formal consultation, it reflects an implicit understanding that republican principles
generally permit representatives to inquire of the people on fundamental matters.
Consistent with that understanding, for more than a century, states have employed
the particular means at issue here—an advisory ballot question—to inform
decisions concerning federal constitutional matters.
Until adoption of the Seventeenth Amendment, the federal Constitution
vested the selection of senators in state legislatures. (See U.S. Const., art. I, § 3.)
By the late 19th century many states, especially in the Midwest and West, were
inclined to transfer that power to the people themselves. (1 Haynes, The Senate of
the United States: Its History and Practice (1938) pp. 96–104; Rossum, California
and the Seventeenth Amendment in The California Republic (Janiskee & Masugi
21
edits., 2004) pp. 83–85.) In 1891, our Legislature placed on the next year‘s
general election ballot an advisory question, asking the voters whether they were
for, or against, ― ‗the election of United States Senators by the direct vote of the
people,‘ ‖ with the results to be submitted to the President, Congress, and every
state in the Union. (Stats. 1891, ch. 48, p. 46.) The result was a landslide; better
than 93 percent of those casting ballots favored direct election. (Rossum, at p. 84;
Hall, The History and Effect of the Seventeenth Amendment, supra, at p. 230.) So
informed, the Legislature requested that California‘s senators and representatives
propose a constitutional amendment providing for the direct election of senators.
(Assem. Joint Res. No. 7, Stats. 1893 (1893 Reg. Sess.) res. ch. 15, p. 620.)
Nevada in 1893 and Illinois in 1902 followed suit. The Nevada
Legislature, viewing it as ―expedient that the wishes of the people of this State
upon the subject of the election of United States Senators should be unmistakably
expressed‖ (1893 Nev. Stats., ch. 17, pp. 21–22), placed on the ballot an advisory
question and forwarded the results (nearly eight to one in favor of amendment) to
Congress and other states‘ Governors (id., § 3, p. 22; Haynes, The Election of
Senators, supra, at pp. 106, 110). Illinois‘ Legislature sought general
constitutional guidance, asking the polity whether ― ‗the next General Assembly
[should] take the necessary steps, under Article 5 of the Constitution of the United
States, to bring about the election of United States Senators by the direct vote of
the people?‘ ‖ (Haynes, at p. 110, fn. 10.) Guidance it got; by a nearly six-to-one
margin, voters favored legislative efforts to bring about a federal amendment. (Id.
at p. 106.) So advised, the next year the Illinois Legislature petitioned for a
national constitutional convention. (See id. at p. 108.)
Prior to ratification of the Seventeenth Amendment, our Legislature turned
again to the advisory question mechanism to obtain advice on whom to select for
the Senate under its not-yet-superseded federal power to choose senators. (Stats.
22
1909, ch. 405, § 2, p. 691 [providing for an ―advisory vote for the purpose of
ascertaining the sentiment of the voters‖ concerning senatorial candidates]; Stats.
1911, ch. 387, § 1, pp. 704–705 [directing that future general election ballots
include the names of party candidates for Senate, with results of the advisory
referenda to be forwarded to the Legislature].) Here, California was following the
lead of the many other legislatures that saw fit to inform their exercise of their
federal power to choose senators through advisory plebiscites. Nebraska was the
first state to adopt this course, in 1875 (Kyvig, Explicit & Authentic Acts, supra,
at p. 210); in 1899, the Nevada Legislature adopted an advisory procedure
essentially identical to what California later enacted (Nev. Stats. 1899, ch. 71,
pp. 86–87); and by 1911, more than half of all states had some form of advisory
plebiscite in place (Kyvig, at p. 210; see generally Haynes, The Election of
Senators, supra, at pp. 140–150).
In the 1920s and 1930s, as discontent over Prohibition grew, many state
legislatures submitted to the people advisory questions asking whether the
Eighteenth Amendment should be repealed. The Rhode Island Legislature
declared it ―proper and desirable that each qualified elector should be permitted to
exercise his constitutional right to register his opinion on this broad social and
economic question‖ and directed that the results be sent to Congress. (R.I. Acts
1930, ch. 1507, pp. 63–64.) The people of Rhode Island favored, by more than
three to one, constitutional change. (Assn. Against the Prohibition Amendment,
32 Reasons for Repeal (1932) p. 34.) The results were the same in Wyoming,
where the legislature solicited the electorate‘s views and ordered the secretary of
state to transmit the results to Congress (Wyo. 1931 Sess. Laws, H. J. Res. No. 4,
p. 249); better than 70 percent favored a constitutional amendment (Ann. Rep. of
the President of the Association Against the Prohibition Amendment for the Year
1932 (1933) p. 12). Similar votes took place across the country. (See, e.g., Conn.
23
Pub. Acts 1931, ch. 272, pp. 285–286, §§ 2–5 [petitioning Congress for repeal of
the 18th Amend., subject to the electorate in an advisory vote signaling its desire
for an amendment]; La. Acts 1932, Act No. 241 (La. Sen. Conc. Res. No. 3),
p. 767, §§ 1–5 [submitting to an advisory vote a joint resolution petitioning
Congress to call a constitutional convention to repeal or modify Prohibition]; Nev.
Stats. 1925, Sen. Joint Res. No. 7, p. 358 [calling for a constitutional convention in
the wake of a landslide pro-repeal advisory vote]; 32 Reasons for Repeal, at p. 34
[cataloguing the results of these and other advisory votes]; Ann. Rep. of the
President, at pp. 9–12 [same].) Repeal followed anon, proposed by Congress and
ratified by the end of 1933. (U.S. Const., 21st Amend.)
More recently, the Florida Legislature placed on the ballot two advisory
questions asking whether the people supported federal constitutional amendments
to prohibit forced busing and permit school prayer. (Fla. Acts 1972, ch. 72–3,
pp. 114–115, §§ 1–2.) And in 2010, the Florida Legislature applied to Congress
for the calling of a constitutional convention to propose a balanced budget
amendment (Fla. Sen. Conc. Res. No. 10 (2010); see 160 Cong. Rec. S5563–
S5564 (daily ed. Sept. 11, 2014)) and again placed on a subsequent general
election ballot a nonbinding advisory question asking whether the federal
Constitution should ―be amended to require a balanced federal budget without
raising taxes?‖ (Florida Sen. Bill. No. 2742 (2010 Reg. Sess.) § 1).
State legislatures have also seen fit to resort to advisory questions when
debating whether to ratify a proposed amendment. In the 1920s, Congress sent to
the states an amendment overturning United States Supreme Court decisions
limiting Congress‘s regulatory power over child labor. (H. J. Res. No. 184, 68th
Cong., 1st Sess. (1924) 43 Stat. 670; see Bailey v. Drexel Furniture (1922) 259
U.S. 20; Hammer v. Dagenhart (1918) 247 U.S. 251.) Before acting, the
Massachusetts legislature submitted the question of ratification to an advisory vote
24
of the people. (Kyvig, Explicit & Authentic Acts, supra, at p. 259.) In the 1970s,
the Nevada Legislature had before it the proposed Equal Rights Amendment; as
had Massachusetts a half-century earlier, it turned first to the electorate, asking
voters whether they ―recommend[ed] that the Nevada legislature ratify‖ the
proposed amendment. (Nev. Stats. 1977, ch. 174, § 5, p. 322; see Kimble v.
Swackhamer (1978) 439 U.S. 1385, 1386.) Contemporaneously, the Idaho
Legislature adopted a rule that it would act on proposed federal amendments only
after obtaining the results of a nonbinding popular vote on any proposed
amendment. (Idaho Code former § 34–2217, repealed by Idaho Stats. 1995, ch.
227, § 1.) When the Twenty-seventh Amendment, regulating congressional
salaries, was up for consideration in 1988, the legislature put the matter to a vote
and, after the electorate strongly supported it, ratified the amendment. (Kyvig, at
p. 466; Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-
seventh Amendment (1992) 61 Fordham L.Rev. 497, 539.)
When contested, these actions have been upheld. California‘s provision for
including an advisory senatorial vote on primary election ballots was challenged
as violating the one subject rule because it was adopted as part of an act also
regulating binding, not merely advisory, primary voting. (Socialist Party v. Uhl
(1909) 155 Cal. 776, 781; see Cal. Const., art. IV, § 9 [one subject rule].) In the
course of rejecting the challenge, this court held: ―There is nothing in the
constitution—either the amendment of [former] section 2½ of article II, or any
other provision—which prohibits the legislature from providing at a primary for
an expression of a choice as to a candidate for United States senator. It is within
the general legislative power to do so, and that it has provided for this advisory
vote at a primary election is for the purpose of convenience‖ and sufficiently
germane to the subject of primary elections. (Socialist Party, at p. 782.) We
considered ―whether legislation in connection with primary laws granting such
25
right of expression of a choice is prohibited by the constitutional provision
particularly under consideration [relating to the one subject rule], or any other‖
and concluded it was not. (Ibid., italics added.)
The Nevada Supreme Court rejected a federal constitutional challenge to
the Nevada Equal Rights Amendment vote, explaining that the advisory question
was not ―a limitation on legislative power violative of article V of the federal
constitution‖ but instead ―simply specifie[d] a means by which to assist the
legislature whether to consent or not to consent to the proposed amendment.‖
(Kimble v. Swackhamer (Nev. 1978) 584 P.2d 161, 162–163.) Then Justice
Rehnquist, acting as Circuit Justice, rejected an application for summary reversal
of this decision, agreeing that the advisory question posed no article V problem:
―Under the Nevada statute in question, ratification will still depend on the vote of
the Nevada Legislature, as provided by Congress and by Art. V. I would be most
disinclined to read either Hawke, supra, [253 U.S. 221,] or Leser [v. Garnett
(1922) 258 U.S. 130], or Art. V as ruling out communication between the
members of the legislature and their constituents.[13] If each member of the
Nevada Legislature is free to obtain the views of constituents in the legislative
district which he represents, I can see no constitutional obstacle to a nonbinding,
advisory referendum of this sort.‖ (Kimble v. Swackhamer, supra, 439 U.S. at
pp. 1387–1388.) Kimble suggests, at a minimum, ―there are at least some
circumstances in which the submission of a ballot proposition relating to an
13 The United States Supreme Court in Hawke v. Smith, No. 1, supra, 253
U.S. at pages 228–230 invalidated an attempt to subject a legislature‘s decision
respecting ratification to a state law referendum because doing so would contradict
article V‘s allocation of authority to the legislatures themselves. In Leser v.
Garnett, supra, 258 U.S. at page 137, the Supreme Court reaffirmed that a state
legislature‘s actions in ratifying amendments are purely federal in character and
―transcend[] any limitations sought to be imposed by the people of a State.‖
26
amendment to the federal Constitution will not violate Article V‖ and establishes
that article V does ―not completely foreclose[] a state‘s electorate from
contributing some input to the amendment process.‖ (Bramberg v. Jones, supra,
20 Cal.4th at p. 1058; see American Federation of Labor v. Eu, supra, 36 Cal.3d at
p. 707 [a popular initiative proposing in nonbinding fashion a federal amendment
would raise no art. V issues].)
In 1986, the Idaho Attorney General considered the constitutionality of the
then extant Idaho requirement that decisions whether to ratify federal amendments
be deferred until after a nonbinding advisory referendum. (See Idaho Code former
§ 34–2217, repealed by Idaho Stats. 1995, ch. 227, § 1.) The Attorney General did
not doubt that state legislatures could voluntarily submit nonbinding advisory
questions concerning federal constitutional amendments to the electorate in
individual cases; the legislature could choose to follow a ―referendum first,
legislative decision second‖ rule. The only potential problem with the advisory
vote law involved its attempt to constrain future legislatures; that is, while any
legislature in its discretion could decide to pose an advisory question before voting
on ratification, the current state legislature could not mandate that future
legislatures be required to do so. (Ops. Idaho Atty. Gen. No. 86–9 (1986).)
B. Advisory Questions and State Constitutional Limits
Legislatures in California and elsewhere thus have established a tradition of
using advisory ballot measures to determine the will of the people on questions
pertaining to amendments to the federal Constitution. While ― ‗usage and custom,
no matter how long continued, cannot create a right in the legislature that
otherwise it does not possess‘ ‖ (Special Assembly Int. Com. v. Southard, supra,
13 Cal.2d at pp. 508–509), we see no evidence the drafters of the California
Constitution intended to deprive the Legislature of a tool other state legislatures
27
have long used to ensure they are truly speaking on behalf of their states in the
federal constitutional amendment process.
Nevertheless, Howard Jarvis offers a series of arguments for why the
structure and implications of various provisions of our state Constitution
necessarily bar the Legislature from using an advisory question as a means of
investigating the will of the people with respect to federal constitutional
amendments. We consider four separate contentions: (1) the Constitution
confines the means of investigation to investigation by committee; (2) the
Constitution confines the Legislature‘s access to the ballot to specifically
enumerated circumstances that do not include advisory questions; (3) the
Constitution prohibits anyone from placing on the ballot a measure that does not
enact law; and (4) the Constitution allocates legislative power to the people and
the Legislature in a way that preserves clear lines of accountability and implicitly
prohibits devices such as advisory questions that would blur those lines. None has
merit; no constitutional provision or set of provisions prohibits the use of advisory
ballot measures concerning federal constitutional amendments.
1. The Committees Clause
Howard Jarvis argues that the power to investigate is limited by California
Constitution, article IV, section 11, which authorizes investigations by committee.
Under that provision, ―[t]he Legislature or either house may by resolution provide
for the selection of committees necessary for the conduct of its business, including
committees to ascertain facts and make recommendations to the Legislature on a
subject within the scope of legislative control.‖ (Ibid.) From this language,
Howard Jarvis reasons that the Legislature may ascertain facts only through
committee investigations, and not by any other means. This argument
misapprehends the import of the committees clause.
28
Prior to the clause‘s adoption in 1940 (see Cal. Const., art. IV, former § 37,
added by initiative, Gen. Elec. (Nov. 5, 1940)), the extent of the Legislature‘s
ability to act through less than all of the members of one house was the subject of
dispute. (See Swing v. Riley (1939) 13 Cal.2d 513; Special Assembly Int. Com. v.
Southard, supra, 13 Cal.2d 497; In re Battelle, supra, 207 Cal. 227.) In Battelle,
this court considered but rejected the argument that the Legislature could not
investigate by committee, explaining that the Constitution implied a power to
investigate and committee investigations were a permissible exertion of that
power. (Id. at pp. 240–244.) In Special Assembly, we again construed the state
Constitution as implying a power to investigate, including a power to investigate
by committee. (Special Assembly, at pp. 502–504.) We held, however, that the
Legislature was not a continuing body, that it ceased to exist between sessions,
that its express powers ceased to exist at the same time, and accordingly that the
implied power to investigate died too. (Id. at pp. 504–507.) Consequently, an
interim committee established by the Assembly to conduct investigations after
legislative adjournment and report to the next session of the Legislature was
unconstitutional. (Id. at p. 509; see Swing v. Riley, at pp. 517–520 [extending the
same conclusion to a committee created by a joint resolution of both houses].)
At the next general election after Special Assembly, the Legislature placed
on the ballot a constitutional amendment making explicit the power to investigate
and act by committee and overturning the holdings that that power did not extend
between legislative sessions.14 A ballot argument in support of amendment
14 As enacted, California Constitution, article IV, former section 37 specified
that ―[t]he resolution creating any such committee may authorize it to act either
during sessions of the Legislature or after final adjournment.‖ (Voter Information
Guide, Gen. Elec. (Nov. 5, 1940) text of Assem. Const. Amend. No. 2, p. 17.)
When the state Constitution was revised and modernized in 1966, the committees
(footnote continued on next page)
29
quoted directly from In re Battelle, supra, 207 Cal. at page 241: In ― ‗the
preparation of wise and timely laws the necessity of investigation of some sort
must exist as an indispensable incident and auxiliary to the proper exercise of
legislative power.‘ ‖ (Voter Information Guide, Gen. Elec. (Nov. 5, 1940)
argument by Assemblymember Voigt in favor of Assem. Const. Amend. No. 2,
p. 24.) Another argument explained that, although the inherent power to
investigate by committee had always been recognized, ―[a] recent court decision
has held, however, that this practice in our State is without constitutional
authority.‖ (Id., argument by Assemblymember Cronin, at p. 24 [implicitly
referencing Special Assembly].) The amendment‘s purpose was to supply,
explicitly, the constitutional authority Special Assembly had found lacking. (Id., at
p. 24.)
Accordingly, we read the text of the committees clause as language of
expansion, not restriction. The ballot argument in support endorses extant
precedent establishing an implied power of investigation. The amendment simply
removes doubt over whether the Legislature may investigate and carry out other
necessary functions also by way of committee; it does not require the Legislature
henceforth to inform itself of facts bearing on the need for action only by way of
committee. Nothing in California Constitution, article IV, section 11 constrains
the Legislature from placing advisory questions on the ballot.
(footnote continued from previous page)
clause was moved to its present location, article IV, section 11. Six years later, the
Legislature‘s calendar was amended to eliminate lengthy periods of adjournment
between sessions, and the language relating to inter-session committees was
deleted as superfluous. (See Prop. 4, as approved by voters, Gen. Elec. (Nov. 7,
1972).)
30
2. Legislative Access to the Ballot
Various provisions of the state Constitution expressly authorize the
Legislature to place measures on the ballot for voter approval. The Legislature
may amend or repeal a statute adopted by voter initiative, but generally only if the
amendment or repeal is first submitted to and approved by the electorate. (Cal.
Const., art. II, § 10, subd. (c).) The Legislature may authorize the issuance of
bonds, but above a certain amount they must be submitted to the voters for
approval. (Id., art. XVI, § 1.) Finally, the Legislature may propose state
constitutional amendments, but such amendments must be submitted to the voters
for approval. (Id., art. XVIII, §§ 1, 4.)
Invoking the interpretive canon expressio unius est exclusio alterius,
Howard Jarvis argues these three specific instances in which legislative action
must be ratified by the voters demonstrate no others are permitted. (See also dis.
opn., post, at pp. 6–7 [arguing that the constitutional scheme precludes legislative
access to the ballot in other circumstances].) Under the canon, the explicit
mention of some things in a text may imply other matters not similarly addressed
are excluded. (In re J. W. (2002) 29 Cal.4th 200, 209; Lake v. Reed (1997) 16
Cal.4th 448, 466.) Applied to specific grants of power, the canon may support
― ‗ ―an implied negative; an implication that no other than the expressly granted
power passes by the grant; that it is to be exercised only in the prescribed
mode.‖ ‘ ‖ (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196; see Wheeler
v. Herbert (1907) 152 Cal. 224, 237 [applying the canon to interpret the scope of
the Legislature‘s powers under the state Constitution].)
Here, however, the canon has no application. The expressio unius
inference arises only when there is some reason to conclude an omission is the
product of intentional design. (Marx v. Gen. Revenue Corp. (2013) 568 U.S. ___,
___ [185 L.Ed.2d 242, 253, 133 S.Ct. 1166, 1175]; Silverbrand v. County of Los
31
Angeles (2009) 46 Cal.4th 106, 126.) The text must contain a specific list or
facially comprehensive treatment. (See Barnhart v. Peabody Coal Co. (2003) 537
U.S. 149, 168 [the canon ―has force only when the items expressed are members
of an ‗associated group or series,‘ justifying the inference that items not mentioned
were excluded by deliberate choice, not inadvertence‖]; Chevron U.S.A., Inc. v.
Echazabal (2002) 536 U.S. 73, 81 [the canon requires a ―series of terms from
which an omission bespeaks a negative implication‖]; In re Sabrina H. (2007) 149
Cal.App.4th 1403, 1411 [the canon ―is generally applied to a specific statute,
which contains a listing of items to which the statute applies‖ and may not have
any application to ―an entire code‖].) The provisions Howard Jarvis relies on are
widely separated, both in where they are codified and as to how and when they
were adopted. The provision allowing the Legislature to propose to the electorate
amendments to initiative measures was adopted by the voters at the 1946 general
election. (See Cal. Const., art. IV, former § 1b, enacted by Prop. 12 (Nov. 5, 1946
Gen. Elec.); People v. Kelly (2010) 47 Cal.4th 1008, 1038.) The provision
providing for bond measures to be placed on the ballot was adopted at the 1878–
1879 Constitutional Convention. (Cal. Const., art. XVI, § 1.) The provision
providing for the Legislature to place constitutional amendments on the ballot
traces all the way back to California‘s first Constitution. (Cal. Const. of 1849,
art. X, § 1.) Nothing suggests these provisions were intended as a conscious and
comprehensive treatment, such that one might infer powers not explicitly
conveyed were intentionally omitted.
More fundamentally, Howard Jarvis‘s argument rests on a misconception as
to the nature of the constitutional provisions it cites. Each involves not a grant of
authority but a limitation on legislative power—an occasion when the Legislature
must turn to the voters, where otherwise it would have been at liberty to act
without voter input. Whatever might be said for the logic of inferring from a few
32
specific grants of authority the absence of some more general authority, that logic
cannot be turned on its head to infer from a few specific limits on legislative
authority the presence of a broader, unstated limit on legislative authority. The
expressio unius canon, were we to apply it here, would at most support the
inference that the three cited instances are an exhaustive list of the circumstances
in which submission of a matter to a plebiscite is mandatory. The canon and the
scattered provisions Howard Jarvis cites offer no guidance at all on the actual
question before us, whether the Legislature in its discretion may turn to the voters
to ascertain their will concerning a possible amendment to the federal
Constitution.
3. The Use of the Ballot for Nonlawmaking Purposes
In a closely related argument, Howard Jarvis notes this court‘s holding that
the people by initiative may place on the ballot only measures that enact law.
(American Federation of Labor v. Eu, supra, 36 Cal.3d at pp. 694, 708–714; see
Cal. Const., art. II, § 8, subd. (a) [―The initiative is the power of the electors to
propose statutes and amendments to the Constitution and to adopt or reject
them.‖].) From this, Howard Jarvis reasons that the people‘s initiative and
referendum power and the constitutional provisions mandating electoral review of
particular actions by the Legislature (Cal. Const., art. II, §§ 8–10; id., art. XVI,
§ 1; id., art. XVIII, §§ 1, 4) define an exhaustive list of matters that may be placed
on the ballot, that they all involve the adoption of law, and accordingly that the
Constitution forbids ballot measures that do not enact laws.
This contention is a variation on the expressio unius argument just
considered and rejected. It depends on the assumption that these scattered
provisions of the Constitution—i.e., adding the people‘s right to place initiatives
and referenda on the ballot to the Legislature‘s duty to place certain matters on the
ballot—define the exclusive list of matters the electorate may vote on. But there is
33
no reason to infer provisions governing what the people may put on the ballot, and
what the Legislature must put on the ballot, limit the wholly separate category,
what the Legislature may put on the ballot. Expressio unius est exclusio alterius
has no interpretive force here.
Howard Jarvis and the dissent contend that if, under American Federation
of Labor v. Eu, supra, 36 Cal.3d 697, the people are limited to placing on the
ballot only proposed laws, then the Legislature must be too. We reject that
argument as well. Our decision in Eu defined limits on the initiative power, not
limits on what the Legislature might do or limits on the proper use of the ballot.
Indeed, we explicitly recognized that the Legislature‘s powers were broader than
those conveyed by the initiative power: ―Even under the most liberal
interpretation, however, the reserved powers of initiative and referendum do not
encompass all possible actions of a legislative body.‖ (Id. at p. 708.) When the
people established the Legislature, they conveyed to it the full breadth of their
sovereign legislative powers. (Nougues v. Douglass, supra, 7 Cal. at p. 69.)
When they adopted the initiative power in 1911, they restored to themselves only a
shared piece of that power. (See Eu, at p. 708.) There is nothing incongruous in
reading the state Constitution as allocating broader powers to the deliberative body
representing the people than to the people directly. Such is the nature of a
republic. (See generally U.S. Const., art. IV, § 4 [guaranteeing a republican form
of government]; Browne, Rep. of Debates in Convention of Cal. on Formation of
State Const. (1850) pp. 393–394 [noting the fundamentally republican nature of
the state Constitution]; 1 Willis & Stockton, Debates & Proceedings, Cal. Const.
Convention 1878–1879, p. 242 [the state Constitution implicitly establishes a
republican form of government].)
Of course Eu of itself does not establish that the Legislature has the specific
authority to ask an advisory question about a federal constitutional amendment
34
where the people might lack the power to opine unilaterally on the same matter;
that issue, central to this case, was far afield from the question in Eu. The point,
rather, is that nothing in Eu forbids this understanding, while the substantially
broader powers assured the Legislature by the federal Constitution‘s article V and
the state Constitution‘s article IV, section 1, in contrast to the narrower powers
restored to the people by the latter section and the state Constitution‘s article II,
section 8, support it.
Nor, contrary to the concern of our concurring colleague Justice Liu, does
recognizing that the Legislature may pose an advisory question about
constitutional matters impermissibly restore to the people a power constitutionally
forbidden them. The state Constitution does not prohibit the people from speaking
on such questions at the ballot box; it simply fails, in article II, section 8, as
construed in Eu, to authorize their doing so unilaterally. That they may not speak
when, pursuant to sources of constitutional power outside article II, section 8, they
are asked, does not follow.
4. Accountability
Finally, Howard Jarvis argues the state Constitution contains an implicit
structural barrier to the use of advisory questions by the Legislature. It asserts
new laws may come into being by legislative enactment, with no participation by
the people, or they may come into being by initiative, with no involvement from
the Legislature (Cal. Const., art. II, § 8; id., art. IV, § 1), and in each instance,
accountability for a given law is clear. Advisory questions on legislative matters,
in contrast, would supposedly blur lines of accountability and hamper the ability
of voters appropriately to evaluate their representatives at the ballot box: should
they be held responsible for a particular legislative action pre-approved by the
electorate, or not?
35
As an initial matter, we note our system of government is one in which the
lines of accountability are inevitably blurred to some extent. In a representative
democracy, legislators are generally expected to be responsive to their
constituents. If a representative votes in favor of a legislative measure that tracks
the results of an advisory ballot measure, a voter may not be able to know if the
representative is voting his or her own conscience or instead is following the
views of a majority of the representative‘s constituents. But even in the absence
of an advisory measure, questions will sometimes arise as to whether a
representative‘s vote on a particular matter is based on the representative‘s
individual views or instead reflects those of his or her constituents, as embodied in
polls or other gauges of public sentiment.
Moreover, our state Constitution guarantees to the people ―the right to
instruct their representatives.‖ (Cal. Const., art. I, § 3, subd. (a).) Although this
court has not had occasion to delineate the bounds of that right, its very existence
is telling.
Instructions are a practice borrowed from England. They were employed
frequently in the colonies as a formal means for the represented to communicate
their views to representatives. (See generally Kruman, Between Authority &
Liberty, supra, at pp. 76–81; Wood, The Creation of the American Republic
1776–1787 (1998) pp. 189–190; Terranova, The Constitutional Life of Legislative
Instructions in America (2009) 84 N.Y.U. L.Rev. 1331, 1333–1339.) For
example, states delivered instructions to their delegates in connection with the
issuance of the Declaration of Independence, during the period of the Articles of
Confederation, and to guide deliberations at the 1787 Constitutional Convention.
(Kobach, May “We the People” Speak?: The Forgotten Role of Constituent
Instructions in Amending the Constitution (1999) 33 U.C. Davis L.Rev. 1, 38–58.)
Views varied as to their compulsory nature; while English legislators had
36
increasingly taken the position that instructions were precatory, some Americans
in the colonial period treated them as more binding. (Kruman, at pp. 76–77;
Terranova, at pp. 1333–1339; Kobach, at pp. 30–37.) A right to instruct
congressional representatives was proposed as an addition to the draft First
Amendment, but ultimately foundered on uncertainty over the effect to be given
instructions, among other concerns. (1 Annals of Congress, supra, at pp. 760–
776.)
Unlike the federal Constitution, the state Constitution has codified a right to
instruct since before statehood. (See Cal. Const. of 1849, art. I, § 10 [―The people
shall have the right freely to assemble together, to consult for the common good,
to instruct their representatives, and to petition the Legislature for redress of
grievances.‖].) Its incorporation into the state Constitution was accompanied by
many of the same fundamental debates seen at the federal level in connection with
the omission of the right from the First Amendment—Are representatives
independent or agents? Do they represent the constituents of their district or the
entire state/country? If a right to instruct were granted, would instructions be
binding?—but the state convention ultimately struck a balance in favor of, rather
than against, a right to instruct. (See Browne, Rep. of Debates in Convention of
Cal. on Formation of State Const., supra, at pp. 42, 294–297.)
That right clouds to some extent the attribution of responsibility for
representative actions. If instructions are given and disobeyed, no accountability
problem arises; plainly the representative has voted his or her conscience, and the
electorate may provide, if it chooses, the same response that met Edmund Burke.15
15 In 1774, Burke offered a classic commentary on the nature of
representation in a speech to the electors of Bristol, England. He denounced
binding instructions, explaining that while constituent opinions were of great
(footnote continued on next page)
37
But if the representative acts in a manner consistent with instructions, then
observers may reasonably ask whether the representative was acting according to
his or her personal choice or simply following instructions. The constitutional
right of the people to instruct their representatives thus blurs, to some degree, the
lines of accountability for representative actions.
In any event, whatever the general merits of the concern that advisory ballot
measures blur accountability, the concern is less significant in the context of a
measure such as Proposition 49 relating to federal constitutional amendment.
Responsibility for the ultimate action sought, a proposed federal amendment, lies
not with the Legislature or the people of California, but with the members of
Congress, the entity constitutionally charged with proposing amendments. To the
extent individual state legislators must be accountable for their role in steps
leading to an amendment, they may be judged for their votes on the earlier
resolution seeking a convention and on the bill placing the advisory question on
the ballot.
C. Conclusion
The federal Constitution is our nation‘s fundamental charter and the source
of its supreme law. Only supermajorities of the people‘s representatives and the
several states can alter the course it sets for our country. (See U.S. Const., art. V.)
Over the last century and more, state legislatures have seen fit to resort to the
(footnote continued from previous page)
interest, ultimately it was the representative‘s duty to act not as mere agent but as a
member of a deliberative body acting in the best interests of the whole. (Bresler,
Rediscovering the Right to Instruct Legislators (1991) 26 New Eng. L.Rev. 355,
362.) Bristol rewarded Burke‘s independence by declining to reelect him.
(Bogus, Rescuing Burke (2007) 72 Mo. L.Rev. 387, 405–408; Bresler, at p. 362.)
38
ballot box for guidance on whether to propose or ratify potential federal
constitutional amendments. This past use of advisory questions to inform the
federal constitutional process evidences a larger truth—a recognition of the
particular appropriateness of consulting the polity in the course of exercising
independent judgment with respect to such foundational matters.
That truth draws its strength from ―the animating principle of our
Constitution that the people themselves are the originating source of all the powers
of government.‖ (Arizona State Legislature v. Arizona Indep. Redistricting
Comm’n (2015) 576 U.S. ___, ___ [192 L.Ed.2d 704, 729–730, 135 S.Ct. 2652,
2671].) If that be so, there can be little complaint with a legislature, before
pursuing constitutional change, seeking to obtain from the people of the state ―the
deliberate sense of the community.‖ (The Federalist No. 71, supra, at p. 482
(Hamilton).) Moreover, the solemnity of the matter to be considered justifies
obtaining popular input through an equally solemn formal vote, rather than a mere
opinion poll or other unofficial solicitation of views. While Hamilton (and many
others) objected to binding instructions from the people, no similar constitutional
objections attach to purely advisory votes. Legislators may solicit and consider
the views of the people on fundamental matters pertaining to federal constitutional
amendments, while at the same time remaining free ultimately to act differently
after due deliberation with fellow members of their representative body. The
Legislature possesses broad discretion, when conducting an investigation under its
implied state constitutional authority, ―to select the means within reasonable
bounds.‖ (Parker v. Riley, supra, 18 Cal.2d at p. 91.) We conclude the enactment
of a statute placing an advisory question on the ballot in order to investigate
popular sentiment on a matter of federal constitutional dimension falls within that
discretion.
39
Our concurring colleague, Justice Liu, expresses concern that we, like the
Legislature, have rested authority for the advisory question here on the
investigative power rather than on the plenary lawmaking power alone. (Conc.
opn. of Liu., J., post, at pp. 35–36.) He argues that the lawmaking power and
power to enact statutes are coextensive, and resort to any other power to justify a
statute would raise doubts about the plenary nature of the lawmaking power. This
line of argument confuses the form of legislative action—statute, resolution,
something else—with the nature of the underlying power justifying the exercise of
that action—lawmaking power, investigative power, ratifying power, something
else. Though the lawmaking power may be exercised only by statute (Cal. Const.,
art. IV, § 8, subd. (b)), we have never held the converse, that every statute may be
justified only as an exercise of the lawmaking power. When California joined the
wave of states enacting statutes governing the ratifying conventions for the
Twenty-first Amendment (ante, p. 12), its actions were not authorized by its
general lawmaking powers alone, but pursuant to an implied article V power to
regulate the procedures for that one-time only event. Justice Liu likewise would
justify enactment of the statute here based not on the naked power to make laws,
but on an implied article V power, albeit while adopting an unduly restrictive
understanding of state legislative powers. Neither that explanation nor ours places
in any doubt the plenary nature of the Legislature‘s lawmaking power.
Justice Liu also expresses concern that the means of investigation selected
here is unlike the methods expressly addressed in previous cases. But novelty
alone is no basis for imposing a categorical constitutional barrier where none
otherwise exists. Here, as we have discussed, none does.
40
IV. The Nexus Between Proposition 49 and the Exercise of Powers
Related to Federal Constitutional Amendment
Having concluded the Legislature may use advisory ballot questions to
facilitate the exercise of its article V functions, we next consider whether the
specific measure before us, Proposition 49, is a reasonable exercise, not barred by
any law, of the Legislature‘s power to investigate and determine the best course of
action in connection with a potential federal constitutional amendment. Howard
Jarvis contends that because the Legislature has already submitted to Congress a
call for a national convention, no further purpose can be served by a ballot
measure. We disagree.
In evaluating the connection between Proposition 49 and the Legislature‘s
powers, we are mindful of our limited role. ― ‗It is no small matter for one branch
of the government to annul the formal exercise by another and coordinate branch
of power committed to the latter, and the courts should not and must not annul, as
contrary to the constitution, a statute passed by the Legislature, unless it can be
said of the statute that it positively and certainly is opposed to the constitution.‘ ‖
(Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 692.) ―[A]ll
intendments favor the exercise of the Legislature‘s plenary authority: ‗If there is
any doubt as to the Legislature‘s power to act in any given case, the doubt should
be resolved in favor of the Legislature‘s action.‘ ‖ (Id. at p. 691.) Nor, in holding
up the Legislature‘s actions to the light of the Constitution, will we inquire into
underlying motives; our review is confined to determining whether an action itself
is at odds with constitutional imperatives. (City and County of San Francisco v.
Cooper (1975) 13 Cal.3d 898, 913; County of Los Angeles v. Superior Court
(1975) 13 Cal.3d 721, 727.) If any reasonable connection between the proposed
41
ballot measure and the Legislature‘s article V-related powers is discernable, it will
suffice.16
We conclude there is a sufficient nexus between Proposition 49 and, at a
minimum, the potential exercise of every one of the Legislature‘s amendment
powers. For the legislators of a state collectively to call on Congress for a federal
amendment, or to call for a national convention, is one matter. For the people of a
state, by the millions, to vote in favor of pursuing an amendment is another. The
1892 plebiscite concerning direct election of senators yielded a resounding 93
percent to seven percent majority in favor of constitutional change. (Rossum,
California and the Seventeenth Amendment in The California Republic, supra, at
p. 84.) The Legislature rationally could believe that a decisive result in the present
day might carry more weight with members of Congress, when deciding whether
to propose or vote in favor of an amendment,17 and with other state legislatures, in
16 The dissent concedes both the Legislature‘s power to investigate and to
carry out article V functions. (Dis. opn., post, at pp. 9–12.) But the dissent
contends that, if allowed to submit an advisory question, the Legislature might use
that power to interfere with the people‘s power of initiative by submitting rival
―competing measures.‖ (Id. at p. 9.) For fear of such abuse, the dissent evidently
would impose on the Legislature the burden of showing the use of any advisory
question is indispensable to the exercise of these recognized powers. (Id. at
pp. 12–13.)
We have held that the people‘s initiative power does not extend to advisory
measures proposing constitutional change. (American Federation of Labor v. Eu,
supra, 36 Cal.3d at p. 694.) A legislative ballot measure inquiring about a federal
constitutional matter, such as we address here, would never compete or interfere
with any rival proposition that the people had the authority, under their initiative
power as construed in Eu, to place on the ballot. There is no warrant to depart
from the settled understanding that the Legislature has discretion to choose within
reasonable bounds its means of investigation, without first having to demonstrate
no alternative means exist. (See Parker v. Riley, supra, 18 Cal.2d at p. 91.)
17 Arguably, the mounting wave of convention calls and pro-amendment state
resolutions played a role in the United States Senate finally capitulating and
(footnote continued on next page)
42
their deliberations over whether to join California‘s call for a constitutional
convention,18 than the Legislature‘s call alone. Election results might also inform
the Legislature‘s decision whether to formally supplement its convention call with
a joint resolution asking Congress to propose an amendment, just as both methods
of soliciting amendment were employed in the late 19th and early 20th century in
connection with senatorial selection and in 1935 in connection with tax reform.
(Ante, pp. 14–16.) Finally, if either Congress or a national convention were to
propose an amendment, a plebiscite would inform the Legislature‘s decision on
ratification. (See Idaho Sen. J. Res. No. 101 (50th Leg., 1st Reg. Sess. 1989),
reprinted in 101 Cong. Rec. S7911 (daily ed. July 13, 1989) [ratifying the 27th
Amend. following solicitation of a popular vote].)
Moreover, even a result at the ballot box rejecting the proposal could afford
material assistance to the Legislature in determining how to exercise its article V-
related powers. Although the Legislature has already called for a constitutional
convention, ―[w]hat the Legislature has enacted, it may repeal.‖ (California
(footnote continued from previous page)
joining the House of Representatives in proposing a direct election amendment.
(See Kobach, Rethinking Article V: Term Limits and the Seventeenth and
Nineteenth Amendments (1994) 103 Yale L.J. 1971, 1976–1980.) The Legislature
could reasonably conclude the members of Congress are not immune to showings
of political and popular support for change.
18 The California Legislature‘s pending convention call is without force until
33 other legislatures join in. (See U.S. Const., art. V.) Just as Pennsylvania‘s
Legislature once coordinated a campaign to marshal the requisite number of
convention calls in support of direct election of Senators (Hall, The History and
Effect of the Seventeenth Amendment, supra, at pp. 223–225; Haynes, The
Election of Senators, supra, at pp. 122–125, 275–276; Kyvig, Explicit &
Authentic Acts, supra, at p. 210), so our Legislature may take steps directed at
persuading other legislatures in order to make its own call meaningful.
43
Redevelopment Assn. v. Matosantos, supra, 53 Cal.4th at p. 255; see Fletcher v.
Peck (1810) 10 U.S. 87, 135 (6 Cranch) [―one legislature is competent to repeal
any act which a former legislature was competent to pass‖].) Nothing in the text
of article V establishes an intent to depart from this fundamental understanding
about the nature of legislative bodies and to afford Congress and state legislatures
only the power to make, but never to withdraw, proposals. Indeed, the logic of the
amendment process the Article establishes urges strongly to the contrary.
Convention calls take effect only when a supermajority, two-thirds of the
legislatures, have joined in. A national consensus is a foundational necessity. To
allow the making of calls, but not their subsequent negation, might place Congress
under orders to call a convention when far fewer states, perhaps not even a
majority, presently favored amendment. It follows that convention calls are not
static; they can be, and as a matter of historical practice frequently have been,
rescinded. (See, e.g., Nev. Assem. Res. No. 157 (1989 Reg. Sess.), reprinted in
101 Cong. Rec. S7911 (daily ed. July 13, 1989) [rescinding convention call];
Kyvig, Explicit & Authentic Acts, supra, at p. 378 [noting N.C. and Okla.
rescissions of convention calls]; Paulsen, A General Theory of Article V: The
Constitutional Lessons of the Twenty-seventh Amendment (1993) 103 Yale L.J.
677, 765–789 [cataloguing both state-by-state convention calls and their repeals].)
The Legislature has called for a national convention; it might, upon sober and
mature reflection informed by popular disapproval at the ballot box, reconsider
and rescind as unwise that resolution.
Illustrative of the relevance an advisory vote can have even after a
legislature has acted is the case of the Massachusetts legislature‘s 1924–1925
change of heart on the question of a child labor amendment. In 1924,
Massachusetts was among those states petitioning Congress for submission of a
constitutional amendment to the states to overturn United States Supreme Court
44
decisions limiting Congress‘s regulatory power over child labor. However, when
Congress complied and proposed an amendment, the state‘s legislature did not
immediately act but instead submitted the question of ratification to a November
1924 advisory vote of the people. The plebiscite demonstrated widespread
popular opposition, with the amendment losing by more than three-to-one. Taking
those views into account, the legislature reversed its support from the year before
and declined to ratify the amendment. (Kyvig, Explicit & Authentic Acts, supra,
at pp. 259–260.) So too, an advisory vote may guide a legislature in deciding
whether to persist with efforts to obtain, or rescind a call for, a national convention
or congressionally proposed federal amendment.
Accordingly, we conclude Proposition 49 is a reasonable and lawful means
of assisting the Legislature in the discharge of its article V-related functions.
Howard Jarvis has identified no constitutional obstacle. Proposition 49‘s
placement on a statewide ballot may be upheld as an exercise of the Legislature‘s
implied power under the California Constitution to investigate and determine the
best course of action in connection with a potential federal constitutional
amendment.
45
DISPOSITION
We discharge the order to show cause, deny Howard Jarvis‘s petition for a
peremptory writ of mandate, and vacate our previously ordered stay.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
46
CONCURRING OPINION
BY CANTIL-SAKAUYE, C. J.
As the majority observes, I dissented from this court‘s August 2014 order
removing an advisory measure, designated Proposition 49, from California‘s November
2014 general election ballot. My vote was based on my conclusion that petitioners had
failed to make a sufficient showing of the invalidity of the challenged measure to warrant
removing it from the ballot.
The court‘s opinion, arrived at following full briefing, oral argument, and
extensive deliberation, concludes that the Legislature properly exercised its authority in
enacting the statute submitting that advisory measure to a vote of the statewide electorate.
The decision upholds the Legislature‘s enactment as a permissible means of investigating
policy options regarding the Legislature‘s exercise of authority under article V of the
federal Constitution concerning a possible amendment to the federal Constitution. In the
process the majority rejects the contrary arguments of petitioners. I agree with the
majority‘s conclusion that, after full consideration, the challenged measure is valid and
that petitioners‘ objections fail. Accordingly, I have signed the majority opinion.
I write separately to avoid any misunderstanding or implication that legislatively
authorized advisory ballot measures are permissible only concerning the narrow universe
of matters relating to the Legislature‘s role under article V of the federal Constitution
(sometimes, article V). As I will explain, legislative authority to pose advisory ballot
questions has long been properly employed — by our own Legislature, by the legislatures
of numerous other states, and by local legislative bodies (such as county boards of
supervisors and city councils) throughout California and the nation — to obtain the views
of the voters concerning all manner of subjects reasonably within a legislative body‘s
authority to act. Nothing in today‘s decision should be viewed as calling into question
the validity of all types of statewide and local advisory ballot measures, even those
completely unrelated to any proposed amendment to the federal Constitution.
Before addressing the legal principles and precedent supporting the Legislature‘s
general authority to submit advisory measures to a vote of the people, it is useful to
review in some detail the long-standing historical and recent practice demonstrating that
legislatively initiated advisory ballot measures have been used regularly and extensively
concerning a wide variety of subjects both within California and nationwide. This
considerable use of advisory ballot measures may not be as well known within the legal
community or among the general public as it perhaps should be, but this practice is
important to keep in mind when the question of the permissible scope of advisory ballot
measures is considered.
I. LEGISLATIVE USE OF GENERAL ADVISORY BALLOT MEASURES
IN CALIFORNIA AND NATIONWIDE, UNCONNECTED
WITH ANY ARTICLE V ROLE OR RELATED ISSUE
A. Seven prior advisory policy measures submitted to California’s statewide
electorate
As section 2, subdivision (m) of the challenged statute (Stats. 2014, ch. 175) itself
observes, ballot measures seeking the nonbinding advisory views of the voters have been
used in the past in this state. On seven prior occasions the Legislature has submitted
advisory ballot measures to the statewide voters, most of them unconnected to any effort
to amend the federal Constitution. And, like the statute currently under review, when the
Legislature‘s questions pertained to issues over which the federal government has
2
ultimate control, the measures have directed that the ballot results be conveyed to
Congress.
The first advisory ballot measure in California — an ugly reflection of its times,
asking the statewide voters whether they were ― ‗[f]or‘ ‖ or ― ‗[a]gainst‘ ‖ Chinese
immigration — was submitted to California voters by the Legislature in 1877 (Stats.
1877, ch. 5, p. 3), and appeared on the statewide general election ballot in September
1879, just a few months after the voters had approved a newly proposed state constitution
at a special election in May 1879. That advisory measure required, similarly to the one at
issue here, that the result of the balloting be conveyed to Congress. (Stats. 1877, ch. 5,
§§ 2 & 3, p. 3.)
The next two advisory ballot measures were presented to the statewide voters in
1892. One implicated the Legislature‘s article V role — it sought the electorate‘s views
concerning whether the federal Constitution should be amended (as it eventually was,
more than two decades later) to provide for direct election of United States Senators.
That advisory measure required, again similarly to the one at issue here, that the result of
the balloting be conveyed to Congress. (Stats. 1891, ch. 48, § 3, p. 46.) The second
advisory measure of that year asked whether the ability to read and write in English
should be a requirement for voting in the state. (Stats. 1891, ch. 113, pp. 704-705.)
As explained in the majority opinion (ante, at pp. 22-23), in 1909, and again in
1911 — both prior to adoption of the Seventeenth Amendment to the federal Constitution
— our Legislature, like those in numerous other states, asked voters to give their advice
at the ballot box concerning which candidate the Legislature should appoint as United
States Senator. (Stats. 1909, ch. 405, § 2, p. 691; Stats. 1911, ch. 387, § 1, pp. 705-705.)
And in 1933, the Legislature posed to the statewide electorate two advisory ballot
questions concerning the use of gasoline tax funds. (Stats. 1933, ch. 435, pp. 1125-
1126.)
3
B. Other states’ submission of advisory measures to their statewide electorates
Dating initially from the late 1700s, and with growing use in the mid 1800s, the
legislatures of other states have sought the advice of their statewide voters on all kinds of
matters unconnected with any article V issue and yet within the legislature‘s authority to
act — ranging from whether to allow the establishment of banks, to abolition of forced
labor by prisoners, to suffrage for women. (Goldman, The Advisory Referendum in
America (1950) 14 Pub. Opinion Q. 303, 305-308 [describing the use of advisory
measures in colonial times and in statewide 19th-century ballot measures in Mass., Ala.,
Wis., Nev., and N. Y.]1 (hereafter The Advisory Referendum).)
The use of such advisory and nonbinding ballot measures has continued
nationwide in the intervening decades. For example, the Massachusetts Legislature put
12 advisory measures on the ballot from 1919 to 1998, and the Wisconsin Legislature
placed 20 such measures on the ballot between 1948 and 1995. (Zimmerman, The
Referendum (2001) p. 62.)
Focusing only on the most recent four decades, advisory measures wholly
unconnected with any article V role have been placed on the statewide ballot by 12 state
legislatures, all of which operate under constitutions similar to California‘s, in that none
contains any provision specifically authorizing such legislative action. These most recent
1 The author explained: A 1797 Massachusetts advisory ballot measure concerned
whether to call a state constitutional convention; an 1819 Alabama advisory measure
concerned whether to ratify an amendment to the state constitution; an 1847 Wisconsin
measure concerned whether to allow or prohibit banks in the state; an 1879 Nevada
measure, like the similar California ballot measure mentioned above, concerned whether
to ban Chinese immigration; an 1883 New York measure concerned whether to abolish
forced labor by prisoners; and another Massachusetts advisory ballot measure in 1895
concerned suffrage for women. (The Advisory Referendum, supra, 14 Pub. Opinion Q.
at pp. 306-308.)
4
examples of statewide ballot measures have posed to the statewide voters the following
policy questions addressing myriad issues coming within the legislature‘s authority to act.
Alaska: Should the legislature propose an amendment to the state constitution
prohibiting the state from providing employment benefits to same-sex partners of public
workers? Should a portion of the Alaska Permanent Fund be used to balance the state
budget? Should the legislature revise the state‘s annuity program by adopting a longevity
bonus for those 65 and older? Should the Legislature adopt a resolution placing before
the voters an amendment to the state constitution calling for regular legislative sessions to
be 120 days long with the possibility of a 10-day extension upon a majority vote?2
Delaware: Do the voters favor allowing the state to license various charitable
organizations to sponsor and conduct lotteries under certain conditions? Do the voters
favor state regulated and controlled slot machines?3
Idaho: In light of the fact that the United States Supreme Court ruled that the
state‘s term limits law does not apply to members of Congress, should that law continue
to apply to state elective offices? Should the state maintain previously adopted property
2 Advisory election (Apr. 3, 2007) on benefits for same-sex partners of public
employees (2006 Alaska Sess. Laws, ch. 1, 4th Special Sess.): voters answered no,
according to data presented on ballotpedia.com (results of statewide elections described
below and through fn. 23 are from the same source or from reports maintained by the
particular state); advisory election (Sept. 14, 1999) on permanent fund (1999 Alaska
Sess. Laws, ch.1, 1st Special Sess.): voters answered no; advisory vote on longevity
annuity option, general election ballot (Nov. 4, 1986), Measure No. 3: voters answered
yes (Inter-university Consortium for Political and Social Research, Referenda and
Primary Election Materials (1994) pt. 49, p. 64); advisory vote on legislative session
length, general election ballot (Nov. 7, 1978), Proposition No. 1 (1978 Alaska Sess.
Laws, ch. 98, Sess. Law No. 78, 2d Sess.): voters answered yes.
3 Advisory referendum (Nov. 6, 1984, election) on lotteries by charitable
organizations (64 Del. Laws, ch. 414, p. 955): voters of the four targeted counties
answered yes; advisory referendum (Nov. 2, 1976, election) on slot machines (60 Del.
Laws, ch. 390, p. 1138): voters of the three targeted counties answered no.
5
tax relief, reducing property taxes and protecting funding for public schools, by keeping
the sales tax at 6 percent?4
Illinois: Should any health insurance plan that provides prescription drug
coverage be required to include prescription birth control as part of that coverage?
Should the state increase its minimum wage to $10 per hour by a certain date? Should
the state constitution be amended to require that each school district receive additional
revenue, based on its number of students, from an additional 3 percent tax on income
greater than $1 million?5
Massachusetts: Should taxpayer money be used to fund political campaigns for
public office? Should the commonwealth require that radio and TV broadcast outlets
give free equal time to all candidates running for public office? Should the
commonwealth change the legal age for consuming alcohol from 21 to 18? Should
voluntary recitation of prayer be authorized in the commonwealth‘s public schools?6
4 Advisory ballot (Nov. 3, 1998, election) on whether to retain state term limits
(submitted by 1998 Idaho Sess. Laws, ch. 255, p. 824): the voters answered yes;
advisory ballot (Nov. 6, 2006, election) on retaining the property tax (submitted by 2006
Idaho Sess. Laws, ch. 1, § 25, p. 36): the voters answered yes.
5 The ―Women‘s Health Referendum Act‖ required a statewide advisory public
question (Nov. 4, 2014, election) on birth control in prescription drug coverage (2014 Ill.
Laws, Pub. Act 98-696, 98th Gen. Assem.): the voters answered yes; the ―Minimum
Wage Increase Referendum Act‖ submitted an advisory public question on the same
ballot (Nov. 4, 2014, election) (2014 Ill. Laws, Pub. Act 98-657, 98th Gen. Assem.): the
voters answered yes; the ―Tax for Education Referendum Act‖ submitted another
statewide advisory public question (Nov. 4, 2014, election) concerning tax on income
over $1 million (2014 Ill. Laws, Pub. Act 98-794, 98th Gen. Assem.): the voters
answered yes.
6 Legislative advisory question on taxpayer funding for political campaigns (Nov. 5,
2002, election), Question No. 3 (2002 Mass. Acts, ch. 184, § 174(c), p. 660): the voters
answered no; legislative advisory question on television and radio time for candidates
(Nov. 6, 1990, election), Question No. 6 (1989 Mass. Acts, ch. 428, p. 732): the voters
answered yes; legislative advisory question on lower drinking age (Nov. 7, 1972,
(footnote continued on next page)
6
Nevada: Should the state designate the third to last Friday in October as a new
Nevada Day holiday, replacing a holiday long declared by the Legislature to fall on
October 31?7
Oregon: Should the state change the system for funding public schools in various
ways specified in a menu of options, concerning income, property, and sales taxes,
presented in four separate advisory measures?8
Vermont: Should the legislature consider enactment of a lottery to supplement
state revenues? Should the state hold a constitutional convention?9
Wisconsin: Should the death penalty be enacted in the state for cases involving
first-degree intentional homicide if the conviction is supported by DNA evidence? Do
the voters favor restrictions on gambling, or new forms of gambling, or continuation of
existing forms of gambling, as described in five separate advisory measures? Should
local control over vocational, technical and adult education be changed to state control,
(footnote continued from previous page)
election), Question No. 8 (1972 Mass. Acts, ch. 155, p. 74): the voters answered yes;
legislative advisory question on prayer in schools (Nov. 7, 1972, election), Question No.
9 (1972 Mass. Acts, ch. 607, p. 479): the voters answered yes.
7 Nevada Day advisory question (Nov. 3, 1998, election), Question 4 (1997 Nevada
Stat., ch. 202, p. 508): the voters answered yes.
8 Modification of school finance system, advisory ballot measure, Measure No. 5A
(May 15, 1990, statewide ballot). This and four companion advisory measures, Nos. 5B
through 5E, were authorized by 1989 Oregon Laws, chapter 1086, section 2, page 2214,
and were presented on the ballot as a menu of options. The voters answered yes, they
wanted to change the current system for funding K-12 schools, but they advised against
each of the four proposed options for doing so.
9 State lottery question (Nov. 2, 1976, election) (1976 Vt. Acts, No. 252, p. 372):
the voters answered yes; constitutional convention question (June 3, 1969, election)
(1969 Vt. Acts, No. 74, p. 202): the voters answered no.
7
with funding paid out of state tax revenues, instead of principally from local property tax
revenues? Do the voters favor greater state aid to municipalities for accelerated water
pollution abatement facilities through the issuance of bonds? Do the voters favor
expanding state acquisition and development of land for recreational purposes through
the issuance of bonds?10
Less frequently during the same most recent four decades, legislatures nationwide
also have continued to exercise their traditional powers by seeking the advisory views of
the electorate concerning, not a possible law or state constitutional amendment, but
10 Death penalty advisory (Nov. 7, 2006, election) Question No. 1 (2005 Sess. Laws,
p. 1807; Wis. Sen. Joint Res. No. 5): the voters answered yes. Regarding the gambling
measures (1991 Wis. Sess. Laws, p. 1783), all were submitted to state voters on the April
6, 1993, statewide ballot, as Questions 1 through 5. Question 1, concerning gambling
casinos on excursion vessels, asked, ―Do you favor a law that would allow gambling
casinos on excursion vessels operating in this state on the Mississippi River, Lake
Michigan and Lake Superior?‖ (the voters answered no); Question 2, concerning
restriction of gambling casinos, asked, ―Do you favor a constitutional amendment that
would restrict gambling casinos in this state?‖ (the voters answered yes); Question 3,
concerning video poker and video gambling, asked, ―Do you favor a law that would
allow video poker and other forms of video gambling in this state?‖ (the voters answered
no); Question 4, concerning pari-mutuel on-track betting, asked, ―Do you favor
continuing to allow pari-mutuel on-track betting on races in this state, such as horse, dog
and snowmobile races?‖ (the voters answered yes); and Question 5, concerning the state-
operated lottery, asked, ―Do you favor continuing to allow the state-operated lottery?‖
(the voters answered yes).
The other Wisconsin referenda mentioned in the text above were posed at the
April 1, 1969, election: to the question of state control and funding of vocational
education (1969 Wis. Sess. Laws, p. 1518), the voters answered no; to the question of
water pollution control bonds (1969 Wis. Sess. Laws, p. 1518), the voters answered yes;
to the recreational lands question (1969 Wis. Sess. Laws, p. 1518) the voters answered
yes.
Advisory ballot policy measures have also been employed internationally. (See
DuVivier, The United States as a Democratic Ideal? International Lessons in
Referendum Democracy (2006) 79 Temple L.Rev. 821, 847 [describing use in New
Zealand, Denmark, Finland, Italy, Norway, Sweden, and the U.K.].)
8
instead connected with the legislature‘s authority to issue policy resolutions directed
toward the federal government.
For example, federal environmental issues have been the subject of advisory
questions in at least four states. The North Carolina Legislature asked voters if they were
―for‖ or ―against‖ location of a radioactive waste facility in the state, and directed that the
results of the ballot be shared with the President, Congress, and other federal officials.
Likewise, the Oregon Legislature asked: Should state officials continue challenges to
federal selection of the state to house high-level nuclear waste repositories? The
Wisconsin Legislature asked: Do voters support construction of a national or regional
high-level radioactive waste disposal site in the state? The Massachusetts Legislature
asked: ―Shall the Commonwealth urge the President . . . and . . . Congress to enact a
national acid rain program‖ requiring specific reductions in total national sulfur dioxide
and allocate the costs of reductions equitably among the states?11
Concerning the federal government‘s military policies, the legislature of
Massachusetts in 1970 polled its voters regarding ―the future course of action by the
United States in Vietnam,‖ asking whether military victory, withdrawal pursuant to a
―planned schedule,‖ or immediate withdrawal was preferable.12 Thereafter, in 1982 the
11 Regarding the radioactive waste disposal referendum (May 6, 1986, election) (1986
N.C. Sess. Laws, ch. 1, p. 1, Ex. Sess.), North Carolina voters answered ―against‖;
concerning continuing challenges to federal selection for nuclear waste repositories (May
19, 1987, election), Measure 1 (1987 Or. Laws, ch. 13, § 5, p. 17), Oregon voters
answered yes; concerning the radioactive waste site question (Apr. 5, 1983, election)
(1983 Wis. Sess. Laws, p. 881), Wisconsin voters answered no; concerning the national
acid rain program question (Nov. 4, 1986, election) Question 8 (1986 Mass. Acts, ch.
167, p. 205), Massachusetts voters answered yes.
12 Regarding the war in Vietnam (Nov. 3, 1970, election), Question No. 5 (1970
Mass. Acts, ch. 588, p. 437), Massachusetts voters selected the middle option —
withdrawal pursuant to a ―planned schedule.‖
9
legislatures of three states — New Jersey, Rhode Island, and Wisconsin — asked their
voters whether the state should inform the President and Congress that the people desired
a negotiated international nuclear weapons moratorium and arms reduction.13
Regarding the federal government‘s role in legislating concerning health care, the
Massachusetts and New Jersey Legislatures each asked voters: Should the state urge
Congress to enact a national health care program?14
C. Nationwide and in California: Advisory measures submitted to voters by local
legislatures (county boards and city councils)
Nationwide, the use of legislative advisory ballot measures to ask voters similar
policy questions is even more frequent at the level of local legislatures — county boards
of supervisors and city councils. (See [as of
January 4, 2016] [―Advisory questions are most commonly used at the local level, often
to voice the opinions of [the] region to higher levels of government‖].) Cities have made
use of such advisory measures since the late 19th and early 20th centuries. (See, e.g.,
Zimmerman, The Referendum, supra, at p. 140 [describing such measures in New York
City, Buffalo, Chicago, and Wilmington]; Crouch, Municipal Affairs: The Initiative and
13 Freeze of nuclear arms escalation (Nov. 2, 1982, election), Public Question No. 1
(1982 N.J. Laws, ch. 35, pp. 79-81): New Jersey voters answered yes; referendum
regarding nuclear armaments (Nov. 2, 1982, election) (1982 R.I. Pub. Laws, ch. 317, p.
1415): Rhode Island voters answered yes; referendum on nuclear weapons moratorium
and reduction (Sept. 14, 1982, election) Question No. 1 (1981 Wis. Sess. Laws, p.
1710): Wisconsin voters answered yes. At least one other state legislature placed a
similar measure on the statewide ballot via the state‘s indirect initiative procedures: on
the nuclear arms freeze initiative, Initiative No. 3 (Nov. 6, 1984, election) (1984 S.D.
Sess. Laws, ch. 236, p. 422), South Dakota voters answered no.
14 Regarding the Massachusetts legislative advisory question on national health care,
Question No. 7 (Nov. 4, 1986, election) (1985 Mass. Acts, ch. 324, p. 568), voters
answered yes; concerning New Jersey‘s national health care referendum, Question No. 2
(Nov. 5, 1991, election) (1991 N.J. Laws, ch. 160, p. 802), voters answered yes.
10
Referendum in Cities (1943) 37 Amer. Poli. Sci. Rev. 491, 492, 501 [observing that
―[m]any city councils have made use of . . . the advisory referendum, or ‗straw vote‘ ‖
advisory ballot, and noting that between 1910 and 1938, 32 such measures were
submitted to the voters in Detroit] [hereafter Referendum in Cities].)
Local legislatively initiated advisory ballot measures in California reflect a similar
pattern. Prior to 1940, and even though there was at that time no explicit constitutional or
statutory authority for doing so, advisory policy measures often appeared on the ballot in
Los Angeles and San Francisco. (See Referendum in Cities, supra, 37 Amer. Poli. Sci.
Rev. at pp. 492, 501 [noting 46 ―[p]ublic [p]olicy [r]eferenda‖ on the L.A. ballot, and 21
on the S.F. ballot].) Eventually, in 1976, the Legislature specifically codified and
acknowledged the propriety of advisory measures placed on the ballot by local legislative
entities, including county boards of supervisors and city councils. Elections Code section
9603, subdivision (a), expressly contemplates advisory measures to allow ―voters within
the jurisdiction, or a portion thereof, to voice their opinions on substantive issues, or to
indicate to the local legislative body approval or disapproval of the ballot proposal.‖
Counted from 1995, the most recent year for which data is readily available, there have
been, in California alone, 184 such measures — mostly by cities, with others by counties
— averaging more than nine statewide each year.
What has been the nature of these local advisory measures? They have mirrored
the types of statewide policy inquiries described above, with a special focus on specific
issues of local importance and within the local legislature‘s authority to act. Typical have
been, for example, questions concerning the conduct of local elections. The City of
Modesto has asked its voters: Should city council members be elected by district, or at
large? The City of Davis has asked: Should city council elections be conducted pursuant
to ―choice voting‖ (also known as ―instant runoff‖ or ―preference‖ voting)? The City of
11
Lancaster has asked: Should the city adopt an ordinance consolidating municipal
elections with countywide school district elections?15
Other measures have probed the voters‘ policy preferences concerning a variety of
miscellaneous local matters. The City of Milpitas has asked: Should the city council
submit to the voters a proposal to revise the city charter in various ways, including
enlarging the city council? The City of National City has asked: Should the city council
establish a Citizens‘ Police Oversight Commission? The City of South Gate has asked:
Should the city council enact a permit system regulating the number of vehicles that may
be parked overnight? The City of Half Moon Bay has asked: Should the city adopt a
policy of employing its powers of eminent domain only when the stated ―public use‖ is
not ―primarily . . . based on the City‘s desire for ‗increased City revenue‘ ‖?16
15 The California Elections Data Archive (CEDA) is a compilation of candidate and
ballot results for all local California elections, prepared as a joint project of the Center for
California Studies and the Institute for Social Research, California State University,
Sacramento, and the Secretary of State ( [as of January 4, 2016]; [as of January 4, 2016]). For text and
results of local measures listed through footnote 23, reference will be made to the
relevant year‘s CEDA compilation, by city or county results.
City of Modesto, Measure J (Nov. 6, 2007, election): voters answered ―by
district‖ (2007 CEDA, city results, p. 23); City of Davis, Measure L (Nov. 7, 2006,
election): voters answered yes (2006 CEDA, city results, p. 38); City of Lancaster,
Measures A and B (Apr. 8, 2008, election): voters answered yes (2008 CEDA, city
results, p. 26).
Likewise, other cities and counties have addressed local election rules: Should the
city council call an election for the voters to decide whether the office of mayor should be
elective, rather than appointed by the city council? (City of Moreno Valley, Measure O
(Nov. 2, 2010, election): voters answered yes (2010 CEDA, city results, p. 31).) Should
mailed ballots be used for all future general district elections? (San Bernardino County,
Measure 1 (Aug. 30, 2011, election): voters answered yes (2011 CEDA, county results,
p. 14).)
16 City of Milpitas, Measure I (June 6, 2006, election): voters answered no (2006
CEDA, city results, p. 35) (the measure asked: ―Should the Milpitas City Council place
(footnote continued on next page)
12
Many other advisory measures have addressed housing, development, and related
public service issues. For example, the City of San Diego has asked: Do the voters
endorse development of up to 5,000 low-rent apartments and townhomes scattered
throughout the city? The City of Modesto has asked: Should the city council expand
sewer service to certain areas? Los Angeles County has asked: Should a new flood
control district be formed, or should an existing area be annexed to a current county flood
control district?17
(footnote continued from previous page)
before the voters a charter city proposal that would require the following: (1) a budget
reserve only for emergencies and not salaries, (2) voter approval of future capital projects
over $15 million, (3) increase City Council from five to seven members, (4) an open
recruitment process for top city management, (5) scheduled performance audits for all
city departments, and (6) voter approval for city charter amendments?‖); City of National
City, Measure L (Nov. 5, 2002, election): voters answered yes (2002 CEDA, city results,
p. 36); City of South Gate, Measure P (Apr. 5, 2005, election): voters answered no (2005
CEDA, city results, p. 20); City of Half Moon Bay, Measure O (Nov. 8, 2005, election):
the voters answered yes (2005 CEDA, city results, p. 23).
Other representative local matters addressed questions such as: Should city
council members‘ compensation be increased 5 percent? (City of Burbank, Measure 1
(Apr. 10, 2001, election): voters answered yes (2001 CEDA, city results, p. 16).) Should
the city replace its employees‘ existing defined-benefit retirement plan with a defined-
contribution plan? (City of Pacific Grove, Measure Y (Nov. 4, 2008, election): voters
answered yes (2008 CEDA, city results, p. 30).)
17 City of San Diego, Measure A (Nov. 5, 2002, election): the voters answered yes
(2002 CEDA, city results, p. 36); City of Modesto, Measures N and O (Nov. 6, 2001,
election): the voters answered yes (2001 CEDA, city results, p. 20); Los Angeles
County, Measures J and K (Nov. 8, 2005, election): the voters answered no (2005
CEDA, county results, pp. 15-16).
Other similar measures have addressed the following questions: Should existing
separate fire and police department buildings be consolidated into a single new building?
(City of Sausalito, Measure B (Mar. 5, 2002, election): the voters answered no (2002
CEDA, city results, p. 28).) Should certain areas of the county remain official
unincorporated communities, or should they be incorporated into a separate city? (L.A.
County, Measures A & B (Nov. 3, 2009, election): voters answered yes to the first and
no to the second (2009 CEDA, county results, p. 14).) Should the city council adopt an
(footnote continued on next page)
13
Numerous local advisory measures have inquired about specific land-related
developments. For example, Siskiyou County has asked: Should certain river dams and
associated hydroelectric facilities be removed? Imperial County has asked: Should the
county create a new regional international airport to replace or augment the services
provided by the county‘s existing international airport? The City of Hawthorn has asked:
Should certain public lands be sold to generate general or earmarked revenue? 18 Still
others have asked about gaming and related issues. For example, the City of Calexico
has asked: Should a local ordinance give a city authority to negotiate agreements with
(footnote continued from previous page)
ordinance requiring removal of landscaping in order to restore and maintain primary
views from private homes? (City of Malibu, Measure E (Apr. 8, 2008, election): voters
answered yes (2008 CEDA, city results, p. 26).) Prior to transfer of ownership of a toxic
Superfund site, should the county demand the Department of the Navy meet certain
conditions, including thorough study, funding for remediation costs, identification of
funds to reimburse the community for any contamination, and actual completion of site
cleanup? (Orange County, Measure B (Nov. 5, 2002, election): voters answered yes
(2002 CEDA, county results, p. 18).) If the water district implements fluoridation for
some local users, should the prorated costs be passed on to those who receive the treated
water? (Humboldt County, Measure B (Feb. 5, 2008, election): voters answered no
(2008 CEDA, county results, p. 15).)
18 Siskiyou County, Measure G (Nov. 2, 2010, election): voters answered no (2010
CEDA, county results, p. 19); Imperial County, Measure P (Nov. 8, 2005, election):
voters answered yes (2005 CEDA, county results, p. 15); City of Hawthorne, Measure A
(Nov. 11, 2001, election): voters answered no (2001 CEDA, city results, p. 16) (the
measure asked whether voters would support sale of local airport property to fund
improvements to educational, police and fire programs, and to create new jobs).
Likewise, when the City of San Juan Capistrano‘s Measure DD (Nov. 5, 2002, election)
asked voters whether they would support sale of more than 13 acres of city land to a
private entity, they answered no (2002 CEDA, city results, p. 32).
14
Native American tribes concerning development and operation of gaming and
entertainment resorts?19
Local voters have been questioned about their policy views concerning
prioritization of existing taxes and related revenues. For example, the City of Plymouth
has asked: Should 2 percent of revenue from the increase in the transient occupancy tax
be used to fund streets, parking, and landscaping, and should another 2 percent of that
revenue fund events, signs and advertising for tourism promotion? Kings County has
asked: Should revenue from new voter-approved sales taxes be used for specified local
criminal-justice system improvements? Tehama County has asked: Should tax proceeds
funding police and fire services be distributed to the county and incorporated cities in
proportion to their respective populations?20
19 City of Calexico, Measure N (June 7, 2005, election): voters answered yes (2005
CEDA, city results, p. 17). Numerous similar subsequent local advisory measures have
produced the opposite advice by voters. Regarding Yuba County‘s Measure G (Nov. 8,
2005, election), voters answered no (2005 CEDA, county results, p. 18); concerning
Glenn County‘s Measure F (June 6, 2006, election), voters answered no (2006 CEDA,
county results, p. 15); concerning the City of Richmond‘s Measure U (Nov. 2, 2010,
election), voters answered no (2010 CEDA, city results, p. 23); see also Colusa County,
Measure D (June 6, 2006, election): voters agreed that the county should oppose local
off-reservation Indian casinos (2006 CEDA, county results, p. 15); City of Petaluma,
Measure H (Nov. 7, 2006, election): voters agreed that the city council should ―take all
lawful steps‖ to oppose gaming on specific local lands (2006 CEDA, city results, p. 37).
20 City of Plymouth, Measure S (Nov. 6, 2012, election): voters answered yes (2012
CEDA, city results, p. 21); see also City of Plymouth, Measure P (Nov. 2, 2010,
election): to the same question posed earlier, the voters also answered yes (2010 CEDA,
city results, p. 22); Kings County, Measure A (Mar. 6, 2001, election): voters answered
yes (2001 CEDA, county results, p. 14); Tehama County, Measure A (Nov. 11, 2004,
election): voters answered no (2004 CEDA, county results, p. 25). Similarly, the City of
West Sacramento has asked: Should funding priority be given to building a new library,
police facility, improving streets, public building access, after school programs,
maintaining adequate reserves? (Measure J (Nov. 5, 2002, election): voters answered
yes (2002 CEDA, city results, p. 41).)
15
Likewise, some advisory ballot questions have accompanied substantive measures
proposing to raise sales and related taxes. The City of Richmond has asked: If a business
license fee on sugar-sweetened beverages passes, should revenues be used primarily to
fund after-school sports programs, sports fields, healthier school meals, as well as
medical and obesity care for indigent children? The City of South Pasadena has asked:
If proposed local tax increases are approved, should at least 65 percent of the generated
revenue be used for infrastructure improvements, and no more than 35 percent expended
for city employee salaries?21 The City of Arroyo Grande, noting that an ordinance
21 City of Richmond, Measure O (Nov. 6, 2012, election): voters answered yes
(2012 CEDA, city results, p. 22); accord, City of El Monte, Measure C (Nov. 6, 2012,
election): asked whether, if a business license fee on sugar-sweetened beverages passed,
revenues should be used primarily for police and emergency services, as well as parks
and recreation, and projects to treat childhood obesity, voters answered yes (2012 CEDA,
city results, p. 25); City of South Pasadena, Measure AV (Nov. 6, 2007, election): voters
answered yes (2007 CEDA, city results, p. 19).
Similar combined measures have asked: If voters approve a proposed measure
increasing taxes, should those proceeds be used to fund only police and anti-gang
operations, including drug resistance education and supervised after-school youth
activities? (City of San Bernardino, Measure YY (Nov. 7, 2006, election): voters
answered yes (2006 CEDA, city results, p. 32).) If voters approve a one-half cent sales
tax increase, should half of the new revenues be spent ―to restore services to the poor that
have been cut due to State takeaways‖ and the other half on school programs ―to restore
educational services . . . eliminated due to State takeaways‖? (City of Richmond,
Measure C (June 7, 2011, election): voters answered yes (2011 CEDA, city results, p.
16).) If a sales tax measure is extended, should the proceeds fund a streetcar system and
flood protection improvements? (City of West Sacramento, Measure U (Nov. 4, 2008,
election): voters answered yes (2008 CEDA, city results, p. 39).) If voters were to
approve a sales tax increase, should the additional revenues be used primarily for
maintaining the city‘s roadways? (City of El Paso de Robles, Measure F-12 (Nov. 6,
2012, election): the voters answered yes (2012 CEDA city results, p. 33).) If voters were
to approve a half-cent sales tax increase, should the proceeds fund street repair, parks,
libraries, after school programs, child and senior facilities, police and fire services, and
reduction of utility and property tax assessments? (City of Whittier, Measure V (Nov. 5,
2002, election): voters answered yes (2002 CEDA, city results, p. 28).) If voters
approved a utility tax increase from 10 to 12 percent, should that increased revenue fund
(footnote continued on next page)
16
measure imposing a one-half cent sales tax to fund community needs was before the
voters, presented a menu of options, asking in separate measures whether a portion of
increased funds should go to (a) upgrading a specific highway interchange? (b) specific
city infrastructure maintenance needs? (c) police and fire services? (d) improvements to
make city facilities more accessible to those with disabilities?22
Finally, a few advisory ballot measures have concerned, not local policy issues,
but instead — and analogously to the advisory measures underlying legislative
resolutions described earlier — entreaties to the President and Congress regarding federal
military policy.23
With this overview in mind, I turn to the question whether, as a general matter, the
Legislature has authority to place an advisory measure on the statewide ballot.
II. THE LEGISLATURE’S GENERAL RIGHT TO INFORM ITSELF IN
ORDER TO CONSIDER WHETHER TO UNDERTAKE ACTION
As the foregoing discussion demonstrates, over numerous decades legislative
bodies have submitted advisory ballot measures to the voters in California and throughout
the country. If such measures were constitutionally impermissible, one would have
(footnote continued from previous page)
―public safety services, including paramedic programs‖? (City of Sierra Madre, Measure
12-2 (Apr. 10, 2012, election): voters answered yes (2012 CEDA, city results, p. 24).)
22 City of Arroyo Grande, Measures K-06, L-06, M-06, N-06 (Nov. 7, 2006,
election): voters answered yes to the first three, no to the last (2006 CEDA, city results,
p. 33).
23 See Mendocino County Measure Y (Nov. 7, 2006, election), asking if voters
supported ending military occupation in Iraq (2006 CEDA, county results, p. 17 [voters
answered yes]); San Francisco City and County, Measure N (Nov. 2, 2004, election),
asking a similar question — ―shall it be city policy to urge the United States government
to withdraw all troops from Iraq?‖ (2004 CEDA, county results, p. 22 [voters answered
yes]).
17
thought that objections would have been raised on numerous occasions throughout the
last century and that we would find judicial decisions striking down such measures. But
the parties have pointed to no such decision and independent research has uncovered
none. Instead, the validity of such legislatively instigated advisory ballot measures has
apparently been so well accepted that judicial challenges to such measures have been
very rare and, as explained below, the few that have been filed have been rejected.
A. Prior actions and assumptions by the drafters of the 1879 Constitution and the
voters who adopted it; early court decisions addressing challenges to advisory
ballot measures; and scholarly commentary concerning the propriety of
advisory measures
As an initial matter, it is important to recognize that the drafters of the 1879
Constitution — the version of the charter that, as revised in 1966, remains operative
today — assumed that under it, the Legislature had power to place an advisory measure
upon the statewide ballot in order to acquire the official views of the electorate on a
question of policy that was completely unrelated to any effort to amend the federal
charter. Moreover, it is clear that the electorate that approved the charter assumed that
the Legislature had authority to present such a measure for the people‘s vote.
As observed ante, part I.A., by statute in 1877 the Legislature placed an advisory
measure on the September 1879 general election ballot, asking the voters whether they
were ― ‗[f]or‘ ‖ or ― ‗[a]gainst‘ ‖ Chinese immigration. In the interim, a state
constitutional convention had been called and was held in the closing months of 1878 and
early 1879 (1 Willis & Stockton, Debates and Proceedings, Cal. Const. Convention 1878-
1879 (Willis and Stockton)), at which the subject of Chinese immigration was a major
focus. During the course of those debates the delegates, essentially all of whom
expressed virulent and racist views on the issue (see, e.g., 1 Willis & Stockton, at
pp. 627- 640; 2 Willis & Stockton, at pp. 641-662, 663-692, 695-702), explicitly
discussed the impending advisory ballot measure. The existence and assumed propriety
18
of that impending measure was instrumental in derailing a proposed constitutional
provision expressly barring such immigration; the delegates instead were content to let
the electorate speak on the issue via the upcoming advisory ballot measure.24
Accordingly, when the Legislature‘s advisory measure was finally presented to and acted
upon by the voters in September 1879, just a few months after they had approved the new
Constitution itself in May of that same year, the electorate voted on that advisory
measure with the blessing of the constitutional delegates, who obviously assumed that the
Legislature possessed and retained authority to submit such an advisory measure to the
statewide voters. Nor is there any reason to believe that the electorate, having voted their
approval of the new charter only months earlier, had any basis to suspect that under it, the
Legislature lacked authority to have the people vote on that September 1879 advisory
ballot measure.25
The few early lawsuits challenging advisory measures were rebuffed. As
mentioned earlier, in both 1909 and 1911 our Legislature, like those in numerous other
24 This movement was led by Mr. Rolfe, who argued against including the proposed
immigration provision in the charter, proposing instead deference to the impending
advisory vote: ―[T]he last Legislature passed an Act submitting the question to the
qualified voters of this State, to vote whether they are in favor or against Chinese
immigration. Any gentleman may turn to the statutes and find it. They are called upon to
vote for or against Chinese immigration. And upon the result of that the Governor and
Secretary of State are to memorialize the President of the United States as to what that
decision may be.‖ (2 Willis & Stockton, supra, at p. 703, col. 1.) Ultimately, the
delegates agreed with Mr. Rolfe, narrowly passing a motion to strike the express
provision barring immigration. (Id., at p. 704, col. 1 [noting that the vote was 54 to 51 to
strike]; see, e.g., 3 Willis & Stockton, at pp. 1493 [the article as reported by the
committee on revision and adjustment] & 1519 [as finally adopted].)
25 The statewide voters, in line with the views of the convention delegates,
overwhelmingly answered that they were ―against‖ Chinese immigration. (See
[as of January 4, 2016].)
19
states, again posed advisory measures to the electorate, seeking its advice concerning
which candidate the Legislature ― at that time possessing the power to appoint the
state‘s United States Senators — should appoint to that position. (Stats. 1909, ch. 405,
§ 2, p. 691; Stats. 1911, ch. 387, § 1, pp. 705-705.) As the majority opinion observes,
when the 1909 enactment placing this question on the 1909 primary election ballot was
challenged as violating the Constitution‘s ―one subject‖ rule in Socialist Party v. Uhl
(1909) 155 Cal. 776, we upheld the statute, and commented: ―There is nothing in the
constitution . . . which prohibits the legislature from providing at a primary [election] for
an expression of a choice as to a candidate for United States senator. It is within the
general legislative power to do so . . . .‖ (Id., at p. 782.)
The South Dakota Supreme Court had reached a consistent conclusion 14 years
previously in State ex rel. Cranmer v. Thorson (S.D. 1896) 68 N.W. 202 (Cranmer),
upholding the validity of a legislative advisory ballot measure outside the article V
context. The South Dakota Legislature sought to pose a question to its statewide voters
concerning whether a provision of the state charter, establishing Prohibition within the
state, should be repealed. (Cranmer, at p. 202, citing 1895 S.D. Sess. Laws, ch. 38,
p. 39.) A prospective voter, arguing that the ballot measure as phrased was not itself a
proposed amendment, but instead a mere question seeking the electorate‘s nonbinding
policy views about a possible future amendment, sought — similarly to petitioners in the
present case — to enjoin the defendant secretary of state from placing such an advisory
measure on the ballot. The state supreme court rejected that challenge, explaining that
even if the measure sought merely the voters‘ advice and not their actual determination of
the ultimate issue, the court was aware of ―no law prohibiting the legislature from
submitting any question its wisdom may suggest.‖ (68 N.W. at p. 202, italics added.)
Regarding the challenger‘s contention that the measure, as phrased, posed only a policy
query to the voters, and that ―the constitution will not be changed whatever reply may be
returned‖ (ibid.), the court stated that the legislature was perfectly free to ―submit a
20
question not intended to change the organic law‖ (ibid.), and concluded that the
legislature ―has done what it had a right to do.‖ (Id., at p. 203.) To determine otherwise
and take the matter off the ballot, the court wrote, ―would disturb the system of checks
and balances which the constitution has so carefully constructed.‖ (Id., at p. 204; see also
Wyatt v. Kundert (S.D. 1985) 375 N.W.2d 186, 191 [acknowledging the legislature‘s
power to pose advisory ―questions to a vote of the electors‖ on the statewide ballot];26
accord, Southeastern Mich. Fair Budget Coalition v. Killeen (Mich.Ct.App. 1986) 395
N.W.2d 325, 330 [―the Legislature can do anything which it is not prohibited from
doing‖ and may ―place advisory questions on the ballot and . . . empower subordinate
governmental entities to do so‖ as well].)
Scholars have long reached the same conclusion. More than 100 years ago, after
describing some of the advisory policy measures mentioned above, Ellis Paxson
Oberholtzer observed: ―There is nothing, it would seem, that could prevent the
legislature from resolving to ask the people for advice‖ by posing questions on the
statewide ballot. (Oberholtzer, The Referendum in America (1911) p. 208 (hereafter The
26 The court in Wyatt proceeded to find that the measure before it was in fact a form
of referendum — a ―legislative act[]‖ that would be effective only upon approval by the
statewide voters — rather than a mere advisory ballot question. (Wyatt v. Kundert, supra,
375 N.W.2d at pp. 191-192.) See also Wagner v. Summers (S.D. 1913) 144 N.W. 730, in
which the South Dakota Supreme Court upheld a statute specifying that acts of local
legislatures (except time-sensitive matters affecting public safety) — including those
legislative acts that did not make law but, as in that case, merely granted a permit by
resolution — were subject to the electorate‘s veto review by referendum at the ballot. In
reaching this conclusion the court stressed that the legislature enjoyed power ―except as it
is limited by the state Constitution and federal Constitution‖ and that all presumptions
favored upholding legislation (id., at p. 732). The court rejected an argument that the
justices should set ―some limit to the character of the acts which may be referred to the
electors,‖ and held instead that “the Legislature in its wisdom must be left to prescribe
what acts . . . may be referred [to the voters at the ballot], and that courts are without
authority to declare limitations where none are prescribed by the Legislature.‖ (Id., at
p. 733, italics added.)
21
Referendum in America); see Lowell, The Referendum in the United States, in The
Initiative, Referendum and Recall (Munro edit., 1912) p. 134 [noting that a legislature
―can, of course, consult‖ ―the electors‖ ―by means of an informal vote‖].) More recently,
Markku Suski echoed those earlier observations: ―[T]here seems to be nothing that
would prevent a state legislature from organizing an advisory referendum‖ or ballot
measure. (Suski, Bringing in the People: A Comparison of Constitutional Forms and
Practices of the Referendum (1993) p. 89 (Bringing in the People).)
B. Nothing in the majority opinion’s analysis, or in fundamental legal principles
that guide this analysis, supports a conclusion that advisory measures are
confined to the article V context
The majority‘s legal analysis, recognizing that the Legislature‘s legislative
authority is plenary and there is nothing in the California Constitution that precludes the
Legislature from placing an advisory measure on the ballot, itself supports the conclusion
that no constitutional principle confines advisory measures to the article V context.27 In
this regard, four of the fundamental legal principles alluded to in the majority opinion
bear repeating here.
First and foremost: The California Legislature‘s legislative power, unlike that of
Congress under the federal Constitution, is plenary. As explained in hornbook passages
of numerous decisions, the Legislature enjoys ―all the powers and privileges which are
necessary to enable it to exercise in all respects, in a free, intelligent and impartial
manner, its appropriate functions, except so far as it may be restrained by the express
provisions of the Constitution, or by some express law made unto itself, regulating and
limiting the same.‖ (Ex parte D.O. McCarthy (1866) 29 Cal. 395, 403.) Moreover,
27 Likewise, the majority‘s analysis rejecting the structural points raised by
petitioners (maj. opn., ante, at pp. 31-37) applies as well to advisory ballot measures
outside the article V context. (See post, pt. III.)
22
― ‗our Constitution is not a grant of power but rather a limitation or restriction upon the
powers of the Legislature‘ ‖ — and we do not look to it in order ― ‗ ―to determine
whether the Legislature is authorized to do an act, but only to see if it is prohibited.‖ ‘ ‖
(Dean v. Kuchel (1951) 37 Cal.2d 97, 100.)28
Second: An essential attribute of the legislative function is the ― ‗determination
and formulation of legislative policy.‘ ‖ (Carmel Valley Fire Protection Dist. v. State of
California (2001) 25 Cal.4th 287, 299.) ―In fact it could be said that policymaking is the
legislative function.‖ (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205,
1219.) The Legislature‘s determination of policy comes into play not only with regard to
its traditional lawmaking function, but also with regard to its traditional function
concerning the issuance of resolutions reflecting a majority vote of each house,
expressing approval or disapproval of legislation pending or proposed in Congress, or
regarding programs or activities of the federal government.29 This resolution power has
28 In other words: ―[U]nlike the United States Congress, which possesses only those
specific powers delegated to it by the federal Constitution, it is well established that the
California Legislature possesses plenary legislative authority except as specifically
limited by the California Constitution.‖ (Marine Forests Society v. California Coastal
Com. (2005) 36 Cal.4th 1, 31.) ― ‗The most cursory examination . . . confirms how
distinctive state constitutions and governments are. The Federal Constitution restricts the
federal government both by imposing prohibitions on the government and by granting the
government only limited powers. Under state constitutions, by contrast, the second
restriction is largely missing, and thus the states exercise plenary legislative power.‘ ‖
(Id., at p. 29.)
29 See, e.g., Wilson et al., California‘s Legislature (2011) pages 120-121 (describing
the use of joint, concurrent, and separate Assem. and Sen. resolutions); Senate
Concurrent Resolution No. 37, Statutes 2015 (2015-2016 Reg. Sess.) resolution chapter
48 (filed with Sect. of State, June 2, 2015) rules 5 and 6, concerning adoption of the joint
rules of the Senate and Assembly for the 2015-2016 Regular Session; cf., 58 Cal.Jur.3d
(2015) Statutes, § 2 (―A . . . joint or concurrent resolution is one that is concurred by both
houses of the legislature‖ and ―takes effect upon the filing of it with the Secretary of
State‖; a ―resolution is not a legislative act, and the legislature in passing a resolution
does not exercise its lawmaking power‖).
23
been long employed by the California Legislature and those of other states in numerous
and widely varied contexts.30
30 See, e.g., Joint resolutions urging building of national railroad (Stats. 1849-1850,
p. 465); Senate Joint Resolution No. 8, Statutes 1919 (1919 Reg. Sess.) resolution chapter
15, page 1439 (urging that loans made to war allies not be forgiven or cancelled);
Assembly Joint Resolution No. 6, Statutes 1919 (1919 Reg. Sess.) resolution chapter 17,
page 1440 (urging acquisition of ― ‗Lower California‘ ‖ and the Coronado Islands from
Mexico); Senate Joint Resolution No. 18 (Statutes 1919 (1919 Reg. Sess.) resolution
chapter 29, page 1461 (urging support for self-determination of Ireland); Senate Joint
Resolution No. 23, Statutes 1982 (1981-1982 Reg. Sess.) resolution chapter 15, page
6701 (urging counseling and treatment for Vietnam veterans suffering from posttraumatic
stress disorders); Assembly Joint Resolution No. 8, Statutes 1993 (1993-1994 Reg. Sess.)
resolution chapter 11, page 7766 (seeking federal assistance to fund services for
undocumented immigrants); Assembly Joint Resolution No. 57, Statutes 2002 (2001-
2002 Reg. Sess.) resolution chapter 183, page 8029 (urging that enforcement of
immigration law remain a federal responsibility, and not a state or local law enforcement
responsibility); Senate Joint Resolution No. 7, Statutes 2005 (2005-2006 Reg. Sess.)
resolution chapter 35, page 6022 (urging Congress to protect women‘s right to equal pay
for equal work); Assembly Joint Resolution No. 6, Statutes 2005 (2005-2006 Reg. Sess.)
resolution chapter 57, page 6053 (urging relief and support for Darfur and its people);
Senate Joint Resolution No. 16, Statutes 2008 (2007-2008 Reg. Sess.) resolution chapter
68, page 5753 (urging establishment of an emergency prescription program for veterans);
Senate Joint Resolution No. 28, Statutes 2008 (2007-2008 Reg. Sess.) resolution chapter
107, page 5818 (urging new sodium consumption guidelines); Assembly Joint Resolution
No. 49, Statutes 2008 (2007-2008 Reg. Sess.) resolution chapter 98, page 5803 (urging
that the California gray whale be listed as an endangered species); Senate Joint
Resolution No. 21, Statutes 2014 (2013-2014 Reg. Sess.) resolution chapter 32 (urging
that Turkey acknowledge the Armenian Genocide).
Concerning the general use of resolutions in California and nationwide, see, for
example, Note, Legislative Notes and Reviews (1920) 14 Am. Pol. Sci. Rev. 672
(―[d]uring the legislative sessions of 1919 over 300 resolutions and memorials were
adopted [nationwide], of which 206 [were] of general public interest and 117 . . .
questions of local interest‖; in 1919 alone numerous state legislatures, including
California‘s, enacted resolutions concerning the League of Nations, ―aliens‖ and
immigrants, military personnel, education issues, women‘s suffrage, transportation
issues, and commodity prices, etc.); Leckrone and Gollob, Telegrams to Washington:
Using Memorials to Congress as a Measure of State Attention to the Federal Policy
Agenda (2010) 42 St. & Local Gov‘t Rev. 235, 239-240 (finding that more than 3,900
substantive ―memorials,‖ or resolutions, were submitted by state legislatures to Congress
(footnote continued on next page)
24
Third: The Legislature possesses powers that are necessary, incidental, and
―ancillary to the ultimate performance of [its] lawmaking functions.‖ (Parker v. Riley
(1941) 18 Cal.2d 83, 89.)31 In this regard the Legislature needs to be able to obtain
information supporting policy determinations that underlie any statutory law or resolution
that it considers.
Fourth and finally: ―The presumption which attends every act of the legislature is
that it is within the constitutional power‖ — and this ―presumption . . . holds good until it
is made to appear in what particular it is violating constitutional limitations.‖
(MacMillan Co. v. Clarke (1920) 184 Cal. 491, 496-497.) ― ‗If there is any doubt as to
the Legislature‘s power to act in any given case, the doubt should be resolved in favor of
the Legislature’s action. [Any] restrictions and limitations are to be construed strictly,
and are not to be extended to include matters not covered by the language used.‘ . . .
[Citations.] Specifically, the express enumeration of legislative powers is not an
exclusion of others not named unless accompanied by negative terms.‖ (Dean v. Kuchel,
supra, 37 Cal.2d 97, 100, italics added in Dean.) In other words, ―all intendments favor
(footnote continued from previous page)
from 1987 to 2006; the Cal. Legislature was the most active, with 542 during that period;
and that nationwide, such measures were used to send signals to the federal government
across a broad range of policy issues, especially those ―topics traditionally reserved to
Congress,‖ including ―defense and international relations and foreign aid‖ as well as
―environment, health, and public lands [under] federal control‖); Filindra and Kovács,
Analyzing US State Legislative Resolutions on Immigrants and Immigration: The Role of
Immigration Federalism (2012) 50 Int‘l Migration 33, 36 (of 36 resolutions by state
legislatures to Congress between 1993 and 2007 concerning immigration issues,
California issued 25).
31 Incidental powers are implied in order to permit the Legislature to operate within
its proper sphere. ― ‗When a legislative body has a right to do an act it must be allowed
to select the means within reasonable bounds.‘ ‖ (Parker v. Riley, supra, 18 Cal.2d at p.
91, quoting Attorney-General v. Brissenden (1930) 271 Mass. 172, 180.)
25
the exercise of the Legislature‘s plenary authority.‖ (Methodist Hosp. of Sacramento v.
Saylor (1971) 5 Cal.3d 685, 691.)
C. Summary and conclusions concerning use of ballot measures to inform the
Legislature regarding issues of policy
As demonstrated earlier, advisory ballot measures have long been used by our
Legislature, those of other states, and local legislatures, to obtain information to inform
the legislative body about possible laws or resolutions. As observed more than 75 years
ago, even when the ultimate decisionmaking power remains with the ―presumably
technically more qualified . . . legislature‖ (whose members retain and employ ―full
power to act independently, whether it be in accordance with or against the wishes of the
people‖), an advisory ballot measure is a useful device for securing ―authoritative popular
participation in public policy-making upon a non-legislating basis‖ and ―facilitating
communication between the electorate and its representatives.‖ (The Advisory
Referendum, supra, 14 Pub. Opin. Q. at pp. 304, 315.)
For similar reasons, nearly 40 years ago Chief Justice Rehnquist approved the
same kind of advisory communication between the electorate and its representatives in
Kimble v. Swackhammer (1978) 439 U.S. 1385. As the majority opinion observes (ante,
at p. 26), in that matter, acting as circuit judge, then Associate Justice Rehnquist refused
to remove from the Nevada ballot an advisory measure submitted by the state legislature,
seeking the electorate‘s views on the proposed Equal Rights Amendment. Justice
Rehnquist explained that he would be ―most disinclined‖ to read the high court‘s prior
cases or the federal Constitution ―as ruling out communication between the members of
the legislature and their constituents. If each member of the Nevada Legislature is free to
obtain the views of constituents in the legislative district which he represents, I can see
no constitutional obstacle to a nonbinding, advisory referendum of this sort.‖ (Id., at pp.
1387-1388, italics added; see also Kimble v. Swackhammer (Nev. 1978) 584 P.2d 161
[rejecting challenges to the advisory measure in the face of a dissenting justice who
26
suggested that the legislature had no authority under the state constitution to submit such
a ballot measure to the voters].)
As these sources, combined with the California constitutional history, cases and
authorities addressing advisory measures, and myriad examples of advisory measures
discussed above suggest — and in light of the guiding principles mentioned earlier,
including the Legislature‘s plenary authority, its core role in shaping and articulating
policy, and the deference that we afford to the Legislature‘s determination of its exercise
of power — it follows that the Legislature may inform itself by enacting a statute that
places an advisory question on the ballot in order to obtain the voters‘ policy views with
regard to any potential action that the Legislature has authority to undertake. Whether
the legislative body proceeds by posing a list of interrogatory policy questions to the
electorate, or, as most often, a single, straightforward question, the goal is the same: to
inform itself about the policy preferences of the voters relating to a matter upon which
the legislative body has authority to act. And in pursuing this information-gathering goal
by placing an advisory ballot measure before the voters concerning such a matter —
whether related to its article V role, its general lawmaking function, or its power to issue
resolutions — a legislative body acts reasonably and within its powers.
Nor do I perceive any reason to question, as a general matter, either the efficacy or
the prudence of this form of information gathering by a legislative body. As the majority
opinion observes, ―[i]n a representative democracy, legislators are generally expected to
be responsive to their constituents.‖ (Maj. opn., ante, at p. 35.) In this regard, recent
empirical scholarship suggests that in practice, the use of advisory measures is
efficacious, providing pertinent information to a legislative body, and that legislative
bodies have employed the information obtained from results of advisory ballot measures
when deciding whether, and how, to undertake actions reasonably within their own
powers. A study of local advisory ballot measures in California revealed that county
boards and city councils complied with the advice of the voters more than 80 percent of
27
the time — while still exercising, of course, prudence and measured discretion to
disagree and depart from that advice as appropriate. (Ely, Government by Advice: Public
Participation and Policymaking Through Advisory Ballot Measures (2015) 47 St. &
Local Gov‘t Rev. 92, 97, 99 [hereafter Government by Advice].)32
32 The author reports that ―[o]f the ninety-eight advisory measure outcomes assessed
over a decade, 81.6 percent‖ of the time, the question-posing county board or city council
―complied with voter sentiment‖ and that the ―overall compliance rate with advisory
votes increases to 87.8 percent when considering only the measures over which the local
government [had jurisdiction to] directly exercise authority.‖ (Government by Advice,
supra, 47 St. & Local Gov‘t Rev. at p. 97.) Regarding situations in which the voters‘
advice is rejected, the author mentions the City of Arroyo Grande measure described
ante, text and footnote 22, and comments: ―Despite the vote outcome, the City of Arroyo
Grande reportedly used the revenue for all four advisory measure purposes . . . . Elected
officials likely saw little political risk to such noncompliance since the other approved
uses were honored, general revenues are fungible, and the disapproved action [upgrades
to meet ADA requirements] complied with a higher-level government mandate.‖
(Government by Advice, at p. 98.) Further reflecting on instances in which the local
board or council ultimately took a position amounting to noncompliance, the author
comments: ―[A] handful of cases illustrate that even when failing to comply with voter
wishes, government decisions are sometimes shaped by critical information uncovered in
the response to advisory votes. This measured discretion available to government
officials is appealing to critics of direct democracy troubled by citizens making formally
binding decisions on complex policy.‖ (Id., at p. 99.)
A similar point has been made concerning the effect of advisory measures in other
countries. (DuVivier, The United States as a Democratic Ideal? International Lessons in
Referendum Democracy, supra, 79 Temple L.Rev. 821.) There the author observes:
―[A]n advisory referendum often proves preferable to one that binds. First, it does not
conflict with an existing system of government that requires legislative supremacy. For
example, in the United Kingdom, the ‗notion of parliamentary sovereignty‘ dictates that
Parliament cannot be formally bound by an advisory referendum. Consequently, an
advisory referendum exerts pressure while simultaneously preserving the existing
governance system. Second, an advisory process better reflects the reality that
government actors must interpret and implement any measure. An advisory referendum
allows a legislature flexibility to predict the outcome of a provision in a manner that
reconciles possible conflicts and anticipates constitutional challenges in the courts.‖ (Id.,
at p. 848, fns. omitted.)
28
Finally, returning to a point alluded to at the start of this discussion, ante, part
II.A.: There is no evidence that the Constitution, as revised in 1966, was intended to
restrict, remove or preclude the Legislature‘s power to pose advisory ballot questions to
the electorate. As noted earlier, the legislative article of the Constitution, as debated and
adopted in 1879, was animated by the drafters‘ and the electorate‘s assumptions that the
Legislature had power to submit an advisory ballot measure unconnected with article V
to the statewide voters. That 1879 version of the Constitution remained in place, with
amendments not relevant here, until the 1960s, when at the behest of the Legislature, the
California Constitution Revision Commission (Commission) undertook to review and
eventually to recommend numerous revisions to the charter‘s legislative article.33 The
voluminous record (working papers, drafts, reports, and transcripts)34 of the resulting
1966 revisions reveals that the Commission drafters, as well as the Legislature, its
33 See Gould, Report on Materials of Constitution Revision Commission Relating to
Provisions in California Constitution Recommended or Endorsed by Commission (Dec.
10, 1974) pages 1-2 (prepared for J. Rules Com. of Cal. Leg.; describing the history of
Commission and its relation to the Leg.) (Report on Commission Materials); see
Californians for an Open Primary v. McPherson (2006) 38 Cal.4th 735, 752-753
(describing the 1950s-1960s history relating to the 1966 recommendations of the
Commission).
34 See generally Report on Commission Materials, supra, at pages 14-16 (describing
the Commission‘s three initial art. IV committees — the Committee on Initiative and
Referendum; the Committee on Legislative Procedure and Compensation; and the
Committee on Restrictions on Legislation and on Crimes — and the provenance of the
eight drafts considered by those committees and the Commission as a whole concerning
art. IV); see 1 State Constitutional Conventions, Commissions & Amendments 1959-
1978: An Annotated Bibliography (1989) (listing, among numerous other documents
circa 1964 to Feb. 1966, seven reports by the Commission to the Leg. concerning art. IV;
and at least eight drafts of art. IV). Finally, Dean of University of California, Berkeley,
School of Law (Boalt Hall) Frank Newman, later a justice on this court, served
prominently as one of 50 members of the Commission. He donated to this court‘s library
his copies of the extensive working papers in this regard.
29
committees, and the Legislative Analyst — with all of whom the Commission
coordinated its proposed changes — accepted as a fundamental guiding principle the
proposition that the Legislature possesses plenary authority, and hence has all powers
except as expressly limited in the charter itself. (See, e.g., Robbins, Revision of Article
IV of the California Constitution (1965) p. 2 [study by Commission staff attorney]
(hereafter Revision of Article IV).)35
Moreover, the Commission advanced its ―[p]roposals involving substantive
change . . . only after especially detailed examination and only in instances where the
change [was] needed and [would] promote a smoother-running state government.‖
(Revision of Article IV, supra, at p. 3.) A searching review of the extensive revision
documents has found nothing to suggest any intent by the Commission or anyone else to
restrict, remove or preclude the Legislature‘s power, as assumed by the drafters of the
1879 charter and voters who enacted it — and as illuminated by the history, cases and
35 In this regard the Revision of Article IV study explained that as a general matter
the Commission proposed ―two types of changes‖ — revisions and deletions. With
regard to deletions, the study observed that ―specific delegations of power to the
Legislature‖ were ―actually never needed in the Constitution‖ because ― ‗It is accepted
constitutional doctrine that state government is a government of inherent powers and that
a state constitution unlike the Constitution of the United States is a document of
limitations and not of grant, i.e., whereas the federal government has only specifically
delegated powers, state government has all the powers of government except insofar as
these powers are constitutionally limited.‘ ‖ (Revision of Article IV, supra, at p. 2.)
Likewise, see also the general comments made by Commission member (and chairman of
the reorganized art. IV subcommittee that had taken the place of the prior three
committees) James Beebe, testifying before the Legislature‘s joint committee on
legislative organization. Addressing the general subject of ―restrictions on the
Legislature‖ that would be imposed by the proposed article, he explained that specific
grants of power could be eliminated because it was established by case law that the
Legislature already has ―all of the power not expressly denied to it in the Constitution.‖
(J. Com. on Legislative Organization, transcript of hearing (Nov. 6, 1964) p. 46.)
30
commentary discussed above — to place advisory policy measures, even those
completely unconnected with any article V issue, on the statewide ballot.
For reasons set out above, when the Legislature in 2014 enacted the challenged
statute posing to the statewide voters the advisory policy questions set out in Proposition
49, it performed well within its authority to inform itself concerning possible action that
it might take regarding matters reasonably within its powers.
Moreover, and again for reasons set out above, it is important to avoid any
implication that advisory ballot measures are proper only in connection with a legislative
body‘s exercise of its functions under article V of the federal Constitution. Such a
narrow view of legislative authority would find no support in any case or secondary
source; it would conflict with the few but long-established judicial decisions that have
rejected challenges to such legislative authority; it would necessarily imply the invalidity
of myriad past advisory statewide ballot measures both in California and the other
jurisdictions described earlier; likewise it would mean that all such measures previously
submitted to the voters by local legislative bodies (county boards and city councils) —
many hundreds in California alone in just the last four decades — were invalid and that
the procedure may never again be employed to secure the people‘s views; and it would
confine any future advisory ballot measure to the distinct subset of measures concerning
possible amendment to the federal Constitution. Fortunately for the cause of full
discourse and communication between our elected representatives and the people in our
democracy, that is not the law.
III. CONTRARY TO PETITIONERS’ CONTENTION, THE STRUCTURE
OF THE CALIFORNIA CONSTITUTION AND ITS REPUBLICAN FORM OF GOVERNMENT
DO NOT POSE ACCOUNTABILITY CONCERNS THAT PRECLUDE THE LEGISLATURE
FROM PLACING AN ADVISORY MEASURE ON THE BALLOT
Because petitioners have, in their briefing, argued that the structure of our
constitutional scheme, our republican form of government, and concerns regarding
31
accountability, all militate against recognizing the validity of advisory ballot measures,
we must address those claims now. The majority opinion rejects these contentions by
explaining, as an initial matter, that under our existing system of representative
democracy ―lines of accountability are inevitably blurred to some extent.‖ (Maj. opn.,
ante, at p. 35.) Moreover, as the majority opinion observes, the people‘s ―right to instruct
their representatives,‖ set out in the California Constitution, article I, section 3,
subdivision (a), itself also blurs lines of accountability, and is inconsistent with
petitioners‘ view that the state charter implicitly prohibits the Legislature‘s use of
advisory ballot measures. (Maj. opn., ante, at pp. 35-37.)36 I agree on both scores, but I
36 As the majority opinion observes, the people‘s right to instruct their
representatives was set out in our initial charter in 1849 and remains in the 1879
Constitution as amended today. I note that 14 other state constitutions include the same
provision. (Fla. Const., art. I, § 5; Idaho Const., art. I, § 10; Kan. Const. Bill of Rights,
§ 3; Me. Const., art. I, § 15; Mass. Const., pt. 1, art. XIX; Mich. Const., art. 1, § 3; Nev.
Const., art. I, § 10; N.H. Const., pt. 1, art. XXXII; N.C. Const., art. I, § 12; Ohio Const.,
art. I, § 3; Or. Const., art. I, § 26; Tenn. Const., art. I, § 23; Vt. Const., ch. I, art. XX;
W.Va. Const., art. III, § 16.) In addition, a few additional state constitutions provide that
the people may ―make known their opinions to their representatives.‖ (Ill. Const. art. I,
§ 5; see Iowa Const., art. I, § 20; N.J. Const., art. I, par. 18; see also Wyo. Const., art. I, §
21 [guaranteeing the people‘s right ―to make known their opinions‖].)
On a related point, regarding the decision of this court in American Federation of
Labor v. Eu (1984) 36 Cal.3d 687 (AFL v. Eu), holding that the initiative provision of the
California Constitution does not authorize the voters to place an advisory question on the
ballot through an initiative measure, and which case is discussed in the majority opinion,
Justice Liu‘s concurring opinion, and Justice Chin‘s dissenting opinion: I note that in
AFL v. Eu no party brought to the court‘s attention the provision of the California
Constitution explicitly granting the people ―the right to instruct their representatives‖ or
argued that in light of that constitutional right, the initiative provision of the California
Constitution should be interpreted to permit the people to exercise their constitutional
right to instruct their representatives through an advisory initiative measure. By contrast,
when the question of the validity of a similar advisory initiative measure came before the
Idaho Supreme Court after this court‘s decision in AFL v. Eu, the Idaho court held that
the advisory measure could be submitted to the voters through the initiative process as an
exercise of the people‘s state constitutional right to instruct. (Simpson v. Cenarrusa
(Idaho 1997) 944 P.2d 1372, 1377.) Because the present case does not involve an
(footnote continued on next page)
32
believe it is prudent and useful to flesh out petitioners‘ structural claims in slightly more
detail and also to set out additional reasons why I conclude their assertions find no
support in history, case law, or logic.
Petitioners argue that the people‘s creation of direct democracy rights in 1911 by
necessary implication divested the Legislature of power to place advisory measures on
the statewide ballot. They contend: ―[T]he legislative power is shared by the people and
the Legislature. This power to enact law is essentially two sides of the same coin.‖
(Italics added.) They assert that this court must protect both the people, in their exercise
of the initiative power, and the Legislature, in the exercise of its own powers, against
―encroachment and interference by the other.‖ Applying these principles in the present
context, petitioners claim, in essence, that when the people obtained direct democracy
rights to make law in 1911, by implication they also necessarily and simultaneously
stripped the Legislature of any power it previously had under the prior iterations of the
Constitution to pose advisory questions to the statewide voters. This would have
surprised the people who voted for these reforms more than 100 years ago, and this
conclusion would be stunning today.
As observed earlier, prior to adoption of the initiative and referendum as part of
the California Constitution in 1911, the Legislature had five times exercised its authority
to place advisory measures on the statewide ballot in order to determine the voters‘ views
on issues of public import concerning matters within the Legislature‘s power to act. In
fact, as explained earlier, the Legislature‘s right to pose an advisory ballot question
unconnected with any article V issue was assumed by the drafters of the 1879
(footnote continued from previous page)
advisory initiative measure, nothing in the court‘s opinion should be viewed as speaking
to this point.
33
Constitution, and necessarily by the electorate who adopted it as well. (See ante, pt.
II.A.) And as noted previously, in rejecting a single-subject rule challenge to one of
those enactments — providing that the voters should be asked at the primary election
their advice about which candidate the Legislature should appoint as United States
Senator — this court upheld the statute, observing that nothing in the Constitution
prohibits the Legislature from posing such a question on the ballot. (Socialist Party v.
Uhl, supra, 155 Cal. 776, 782.) Although no other judicial decision resulted regarding
any of these early California advisory ballot measures (there was no other court
challenge, most likely because, as suggested earlier, few doubted the Legislature‘s
authority to take such actions), both the history surrounding the drafting and adoption of
the 1879 Constitution, and the early California constitutional precedents at that time
clearly supported such broad authority. Our precedents recognized that, under the
California Constitution, unlike the federal charter, the Legislature has plenary power to
take actions unless expressly prohibited — and there was (and is) nothing in the
California Constitution that prohibits the Legislature from soliciting the views of the
voters on a matter of public concern through a ballot measure.
Neither was there in 1911, nor is there now, authority from any jurisdiction
holding that a state legislative body lacks such power. To the contrary: as noted earlier,
in 1896 the South Dakota high court had in Cranmer rejected a claim that the legislature
had no power to place such a measure on the statewide ballot. The court concluded that it
was aware of ―no law prohibiting the legislature from submitting any question its wisdom
may suggest,‖ and that the legislature was perfectly free to ―submit a question not
intended to change the organic law.‖ (Cranmer, supra, 68 N.W. at p. 202, italics added.)
Consistently with that early decision, also as noted above, contemporaneous scholars
addressing the burgeoning direct democracy movement found ―nothing, it would seem,
that could prevent the legislature from resolving to ask the people for advice‖ at the ballot
34
box. (The Referendum in America, supra, at p. 208; see also Lowell, The Referendum in
the United States, in The Initiative, Referendum and Recall, supra, at p. 134.)
Nevertheless, petitioners suggest that by necessary implication, legislative power
to pose advisory questions to the electorate must have been removed in 1911, when the
people of California followed the lead of South Dakota, Oregon, and 10 other states,
adding what is now article II, sections 8 and 9 of the Constitution, giving themselves
direct democracy rights of initiative and referendum. (See, e.g., People v. Kelly (2010)
47 Cal.4th 1008, 1032 & fn. 30 [describing the early direct democracy movement].) And
yet petitioners point to nothing in the language or history of the initiative and referendum
provisions made part of the California Constitution that year (Stats. 1911, res. ch. 22,
Sen. Const. Amend. No. 22, § 1) purporting to speak to the Legislature’s authority, or to
restrict or preclude its power, by implication or otherwise, and in any manner. There is
simply no support for the view that, by granting to the people initiative and referendum
power in 1911, there was any implied intent to limit or bar the Legislature‘s authority,
which as noted earlier was assumed by all with regard to the 1879 charter, to pose
advisory questions to the voters.37
The same ―necessary implication‖ argument now advanced by petitioners (that the
creation of direct democracy rights itself removed the Legislature‘s power to pose
advisory ballot measures) was raised and rejected — once more by the South Dakota
Supreme Court — this time in its 1985 decision in Wyatt v. Kundert, supra, 375 N.W.2d
186. In the face of a majority opinion acknowledging the legislature‘s authority to pose
37 Indeed, at the time of the 1911 election at which the direct democracy provision
was submitted to the voters, the Legislature was exercising such authority to ask the
voters‘ advice at the upcoming primary and general elections of 1912, concerning which
candidate the Legislature should appoint as California‘s United States Senator. (See ante,
part I.A.)
35
advisory ―questions to a vote of the electors‖ on the statewide ballot (id., at p. 191), a
dissenting justice argued that such power had been necessarily and implicitly withdrawn
when the state constitution was subsequently amended to grant the people initiative and
referendum power. (Id., at p. 198 (dis. opn. of Wuest, J.).) The majority rebuffed that
contention, explaining that the South Dakota Constitution‘s direct democracy provision
―has not removed the legislature‘s inherent referral power and the restrictions imposed by
and through [the state charter‘s direct democracy provision] apply only to referendums of
the people and not to a referendum by the legislature.‖ (375 N.W.2d at p. 191; see also
the Michigan appellate court decision in Southeastern Mich. Fair Budget Coalition v.
Killeen, supra, 395 N.W.2d 325, 330 [the legislature may place advisory policy questions
on the statewide ballot and empower local governmental entities to do so as well].) As
noted earlier, this state of affairs led a 1993 scholarly study to conclude that nothing
appears to prevent a state legislature from placing an advisory measure on the statewide
ballot. (Bringing in the People, supra, at p. 89.)
Neither does petitioners‘ hypothesized implied limitation on the Legislature‘s
authority find support in logic. The notion that the people, in enacting their direct
democracy rights to propose and actually adopt statutes and state constitutional
amendments, also necessarily (but only implicitly) intended to preclude the Legislature
from posing advisory questions to the voters, is at best counterintuitive.
Nor do I find persuasive petitioners‘ corollary argument that the initiative process,
once enacted, became, and remains, the sole province of the electorate — and that it
contemplates no involvement by the Legislature. They assert in their reply brief that ―the
basic structure of the Constitution . . . indicates that there is a clear line drawn between
the lawmaking function of the Legislature on one hand, and the [initiative] powers
reserved to the people on the other hand.‖ That unsupported assertion is dubious as a
matter of constitutional law and history. It also is in tension with the recently enacted
Ballot Initiative Transparency Act of 2014 (Stats. 2014, ch. 697), which reveals that the
36
Legislature itself contemplates that it does indeed have an important role to play by
working with initiative proponents to enact statutes that were originally proposed as
statutory initiatives, derailing a proposed initiative that was otherwise headed for the
statewide ballot.38
In conclusion, petitioners‘ various structural objections underlying their assertions
that the state charter implicitly bars advisory ballot measures do not come close to
satisfying the standards of deference, clarity, and strict construction that, as explained in
the decisions cited ante, part II.B., we adhere to when deciding whether a power is, by
necessary implication, denied to the Legislature. The historical employment of the power
to submit advisory ballot measures by our Legislature and local California legislative
bodies, as well as state and local legislative bodies in other states, would render our
acceptance of petitioners‘ structural challenge to the Legislature‘s action at this late stage
all the more striking. (Schabarum v. California Legislature, supra, 60 Cal.App.4th at
p. 1218 [cautioning against interpretation that raises significant separation of powers
issue].)39
38 See Elections Code section 9034, subdivisions (a) and (b) (initiative proponents
must immediately advise the Secretary of State when they have collected 25 percent of
the signatures necessary for qualification on the ballot, at which point each house of the
Legislature must assign the initiative measure to its appropriate committees and hold joint
public hearings not later than 131 days before the date of the election at which the
measure is to be voted upon); id., section 9604, subdivision (a) (allowing initiative
proponents to withdraw an initiative at any time prior to qualification — hence permitting
initiative proponents to leverage their signature-gathering efforts in order to promote
appropriate legislative compromises, resulting in a statute enacted by the Legislature
rather than an initiative measure placed on the ballot).
39 With respect, I find the conclusions of Justice Liu‘s concurring opinion — that the
Legislature lacks general authority to pose advisory questions to the state‘s voters, but
that article V of the United States Constitution grants the Legislature the authority to pose
advisory questions to the state‘s voters with respect to a proposed federal constitutional
amendment — untenable for a number of reasons.
(footnote continued on next page)
37
(footnote continued from previous page)
First, as this opinion explains, every judicial decision that has addressed the issue,
and every academic commentator that has spoken on the issue, has concluded that a state
legislature generally has the authority to place advisory questions on the ballot. Justice
Liu‘s concurring opinion cites no authority to support its contrary conclusion.
Second, the historical background of California‘s 1879 Constitution — the charter
that, as amended, remains in place today — strongly demonstrates that the framers of the
1879 Constitution, as well as the California voters who adopted the proposed
Constitution, understood that the California Constitution permits the Legislature to place
an advisory question before the voters. That the subject matter of the particular advisory
ballot measure at issue at that time happened to be discriminatory and offensive (see ante,
pt. II.A., and conc. opn. of Liu, J., post, at pp. 29-30) does not negate the fact that the
Constitution‘s framers and the voters clearly viewed a legislatively initiated advisory
ballot measure as a constitutionally permissible procedural mechanism. This procedural
instrumentality or tool — an advisory ballot measure — is not by its nature invariably
discriminatory or offensive.
Third, the concurring opinion‘s novel thesis — that by granting legislative
authority to the Legislature, the 1849 Constitution (and the 1879 charter, as amended)
deprived the state‘s electorate of the authority to vote on an advisory measure submitted
by the Legislature (conc. opn. of Liu, J., post, at pp. 19-23) — flies in the face of literally
scores of legislatively initiated advisory ballot measures that have been submitted to
statewide voters, both in California and throughout the country from this nation‘s
inception. The concurring opinion declines to pay any respect to this substantial ―page of
history.‖
Fourth, Justice Liu‘s concurring opinion posits that the Legislature might in the
future employ advisory ballot measures to submit questions to the electorate in an
inappropriate and disingenuous manner, that the voters would succumb to such tactics
rather than penalize legislators who act improperly by voting them out of office, and that
courts need to intervene by barring all such measures from the ballot. (Conc. opn. of Liu,
J., post, at pp. 37-40.) As Justice Corrigan stresses in her own concurring opinion (post,
at pp. 1-2) Justice Sparks‘s opinion in Schabarum v. California Legislature, supra, 60
Cal.App.4th 1205, appropriately explains that separation of powers principles militate
against any such judicial impulse to police the Legislature‘s exercise of its authority.
Moreover, although advisory question ballot measures have long been employed
nationally and locally, the concerns raised by hypothesized ballot questions set out in
Justice Liu‘s concurring opinion have not materialized in practice.
Fifth, if, as Justice Liu‘s concurring opinion maintains, the vesting of legislative
authority in a legislature inherently deprives the Legislature of the power to pose
advisory questions to the electorate, it appears illogical for the concurring opinion to
conclude that article V of the United States Constitution impliedly grants the Legislature
(footnote continued on next page)
38
IV. CONCLUSION
For the forgoing reasons, and with the caveat that nothing in today‘s decision
should be viewed as calling into question the validity of statewide and local advisory
ballot measures that are unrelated to any proposed amendment to the federal Constitution,
I concur in the majority‘s opinion and disposition.
CANTIL-SAKAUYE, C. J.
(footnote continued from previous page)
that authority with respect to proposed federal constitutional amendments. Nothing in the
language or history of article V purports to grant a state legislature such authority and the
federal Constitution has never been interpreted to grant the federal legislature —
Congress — the implied power to submit an advisory question to the electorate, either
with respect to a proposed federal constitutional amendment or any other subject.
Finally, I question two additional statements in Justice Liu‘s concurring opinion.
First, the concurring opinion states that there is no disagreement with the holding in AFL
v. Eu, supra, 36 Cal.3d 687, 707-714, that the initiative provision of the California
Constitution does not authorize the voters to place an advisory question on the ballot
through an initiative measure. (Conc. opn. of Liu, J., post, at pp. 31-32.) As observed
ante, footnote 36, because this case does not involve the validity of an advisory initiative
measure, the court‘s opinion cannot properly be viewed as expressing any view on that
question. Second, the concurring opinion asserts that ―the Legislature does not have
general authority to submit statutes for voters to approve . . . .‖ (Conc. opn. of Liu, J.,
post, at p. 41.) The assertion on that point appears debatable, particularly in light of the
language and history of article II, section 12 of the California Constitution, but the
question whether the Legislature may place a proposed, nonadvisory statute on the ballot
for the voters‘ approval or disapproval is also not before us in this case and the court‘s
opinion does not address that question.
39
CONCURRING OPINION BY CORRIGAN, J.
With the benefit of time to fully consider the issues presented by this writ
petition, which go to the fundamental structure of our state government, I agree
with and join the majority opinion. Proposition 49 is a valid exercise of the
Legislature‘s investigatory authority under the California Constitution. I also
agree with the Chief Justice that the Legislature‘s power to submit advisory
measures to the electorate is not limited to its role in the process of amending the
federal Constitution. For the reasons stated by the Chief Justice, advisory
measures that are reasonably related to any proper use of legislative power are
permissible.
Both the majority opinion and the Chief Justice‘s concurrence appropriately
emphasize that judicial review of the Legislature‘s exercise of its plenary powers
must be restrained. Doubts should be resolved in favor of legislative action, and
constitutional limitations on legislative authority strictly construed. (Maj. opn.,
ante, at p. 41; conc. opn. of Cantil-Sakauye, C.J., ante, at p. 26.) The foundations
of these limits on the judicial function were soundly explained by Justice Sparks
of the Third District Court of Appeal in Schabarum v. California Legislature
(1998) 60 Cal.App.4th 1205. I place great weight on the following considerations:
―The principle of strict construction arises from the very nature of
California‘s tripartite form of government. Thus, subject to the reserved powers of
initiative and referendum, ‗[t]he legislative power of this State is vested in the
California Legislature . . . .‘ (Cal. Const., art IV, § 1.) The people, in their
Constitution, may place restrictions upon the exercise of the legislative power by
the Legislature but the courts may not do so without violating the fundamental
separation of powers doctrine. Judicial application of clear and unequivocal
constitutional restrictions on the Legislature‘s authority merely enforces the
people‘s exercise of the right to place restrictions upon the Legislature. On the
other hand, legislative restraint imposed through judicial interpretation of less than
unequivocal language would inevitably lead to inappropriate judicial interference
with the prerogatives of a coordinate branch of government. Accordingly, the
only judicial standard commensurate with the separation of powers doctrine is one
of strict construction to ensure that restrictions on the Legislature are in fact
imposed by the people rather than by the courts in the guise of interpretation.‖
(Schabarum v. California Legislature, supra, 60 Cal.App.4th at pp. 1217-1218.)
CORRIGAN, J.
2
CONCURRING OPINION BY LIU, J.
The question presented in this case is ―whether the Legislature may pose to
the electorate a single advisory question concerning the People‘s support for a
federal constitutional amendment.‖ (Maj. opn., ante, at p. 17.) The court answers
yes to this narrow question and goes no further, ―reserv[ing] for another day
whether, in support of other powers not implicated here, an advisory ballot
measure would be a permissible means of legislative investigation.‖ (Id. at p. 17,
fn. 11.) With this limited holding, I concur.
The court‘s reasoning in support of this result includes an informative
survey of relevant constitutional history, and I agree that a ― ‗page of history is
worth a volume of logic‘ ‖ where, as here, the issue presented is novel and
implicates basic questions about governmental structure and constitutional change.
(Maj. opn., ante, at p. 18, quoting New York Trust Co. v. Eisner (1921) 256 U.S.
345, 349; cf. National Labor Relations Bd. v. Noel Canning (2014) 573 U.S. __,
__–__ [134 S.Ct. 2550, 2559–2560] (Noel Canning).) But today‘s opinion goes
astray when it invokes or, more accurately, expands the Legislature‘s investigative
power in order to uphold the advisory ballot measure at issue here. (Maj. opn.,
ante, at pp. 7–10.) This theory is unnecessarily broad and could be read as an
invitation for the Legislature to test the waters with future advisory ballot
measures on a wide range of issues having nothing to do with a federal
constitutional amendment. The Chief Justice would make that invitation explicit.
In her view, the Legislature may use advisory ballot measures ―in order to obtain
the voters‘ policy views with regard to any potential action that the Legislature has
authority to undertake.‖ (Conc. opn. of Cantil-Sakauye, C.J., ante, at p. 27;
accord, conc. opn. of Corrigan, J., ante, at p. 1.) As I explain below, such wide-
ranging use of advisory ballot measures is not authorized by our state Constitution
and would potentially reshape the way electoral politics and policymaking are
conducted in California. We should not take liberties with the careful structure of
republican democracy that the framers of our Constitution have built and
bequeathed to us.
I would not rely on the Legislature‘s investigative power in reaching
today‘s result. Senate Bill No. 1272 is an effort by the Legislature to marshal the
solemn voice of the people of California in support of a federal constitutional
amendment. Article V of the United States Constitution assigns state legislatures
a special role in facilitating and promoting constitutional change. I would simply
hold that Senate Bill No. 1272 is a reasonable exercise of the Legislature‘s implied
power under article V.
I.
Senate Bill No. 1272 is titled the ―Overturn Citizens United Act.‖ (Stats.
2014, ch. 175, § 1.) In enacting this statute, the Legislature declared that the
United States Supreme Court‘s decision in Citizens United v. Federal Election
Commission (2010) 558 U.S. 310 ―presents a serious threat to self-government by
rolling back previous bans on corporate spending in the electoral process and
allows unlimited corporate spending to influence elections, candidate selection,
policy decisions, and public debate.‖ (Stats. 2014, ch. 175, § 2, subd. (e).) It
further declared that ―Article V of the United States Constitution empowers and
obligates the people of the United States of America to use the constitutional
amendment process to correct those egregiously wrong decisions of the United
2
States Supreme Court that go to the heart of our democracy and the republican
form of self-government.‖ (Id., subd. (l).) The statute directed the Secretary of
State to submit to the voters an advisory question (Proposition 49) asking whether
Congress should propose and whether the Legislature should ratify a constitutional
amendment overturning Citizens United, and to report the results to Congress.
(Stats. 2014, ch. 175, § 4, subds. (a), (b).) As all members of the court agree, the
substantive merits of Citizens United and Proposition 49 are irrelevant to the
question in this case.
Amending the federal Constitution is a difficult task, successfully
accomplished only 27 times in our nation‘s history. To secure approval for a
constitutional amendment, a political movement must convince an extraordinary
number of citizens to take the movement‘s aims more seriously than they do most
issues of ordinary government. This was by design. By making the process of
constitutional change more ―unwieldy and cumbrous‖ than ordinary lawmaking
(Barron v. Mayor of Baltimore (1833) 32 U.S. 243, 250), article V of the federal
Constitution serves as a bulwark against the whims of bare legislative majorities
and ensures that rules entrenched in the ―supreme law of the land‖ (U.S. Const.,
art. VI) represent the considered and collective judgments of the people of the
United States. Senate Bill No. 1272 is a statute enacted in furtherance of the
federal constitutional amendment process.
A.
Article V of the federal Constitution provides in relevant part: ―The
Congress, whenever two thirds of both houses shall deem it necessary, shall
propose amendments to this Constitution, or, on the application of the legislatures
of two thirds of the several states, shall call a convention for proposing
amendments, which, in either case, shall be valid to all intents and purposes, as
part of this Constitution, when ratified by the legislatures of three fourths of the
3
several states, or by conventions in three fourths thereof, as the one or the other
mode of ratification may be proposed by the Congress . . . .‖ As this text makes
clear, article V assigns key roles to state legislatures at the proposal and
ratification stages of the federal constitutional amendment process.
Challenges to the manner in which state legislatures have exercised their
article V powers have almost always been rejected. In Hawke v. Smith, No. 1
(1920) 253 U.S. 221 (Hawke), the Ohio General Assembly adopted a resolution
ratifying the proposed Eighteenth Amendment to the federal Constitution. A voter
then filed a referendum petition calling for a special election to approve or reject
the amendment. A different voter brought suit to enjoin state officials from
complying with the referendum petition. The high court held that the referendum
could not proceed, explaining: ―The only question really for determination is:
What did the framers of the Constitution mean [in article V] in requiring
ratification by ‗Legislatures‘? That was not a term of uncertain meaning when
incorporated into the Constitution. What it meant when adopted it still means for
the purpose of interpretation.‖ (Hawke, at p. 227.) Subjecting the ratification
decision to a referendum would violate article V‘s allocation of ratification
authority to state legislatures. (Hawke, at p. 231; accord, Barlotti v. Lyons (1920)
182 Cal. 575, 577; Prior v. Noland (Colo. 1920) 188 P. 729, 731.)
In Leser v. Garnett (1920) 258 U.S. 130 (Leser), the plaintiff argued that
the Nineteenth Amendment to the federal Constitution was invalid because the
legislatures of several states had violated state constitutional provisions in
ratifying the proposed amendment. The high court disagreed on the ground that
state legislatures have authority to exercise their article V functions as they see fit,
free from interference by the ―limitations sought to be imposed by the people of a
State.‖ (Leser, at p. 137.)
4
More recent decisions are in accord. Walker v. Dunn (Tenn. 1972) 498
S.W.2d 102 (Walker) involved a provision of the Tennessee Constitution
prohibiting the state legislature from acting on any federal constitutional
amendment unless the legislature had been elected after submission of the
amendment. The Tennessee Supreme Court upheld the state legislature‘s
ratification of the Twenty-sixth Amendment, even though the legislature did not
wait until the election cycle following submission. The court concluded that the
state constitutional provision was ―a limitation upon the General Assembly of
Tennessee in the exercise of its federally derived power‖ and accordingly was
invalid. (Walker, at p. 106; see Trombetta v. Florida (M.D.Fla. 1973) 353 F.Supp.
575, 577–578 (Trombetta) [invalidating similar Fla. constitutional provision].)
In Dyer v. Blair (N.D.Ill. 1975) 390 F.Supp. 1291 (Dyer), the court
considered a provision of the Illinois Constitution, as well as rules adopted by
Illinois‘s legislature, that required a three-fifths majority vote to ratify an
amendment to the federal Constitution. Each house of the legislature had
approved the proposed Equal Rights Amendment by a vote of more than a
majority but less than a three-fifths supermajority. The court observed that the
framers of the federal Constitution had a ―basic understanding that state
legislatures should have the power and the discretion to determine for themselves
how they should discharge the responsibilities committed to them by the federal
government.‖ (Dyer, at p. 1307.) The court then explained that because the
―delegation [in article V] is not to the states but rather to the designated ratifying
bodies,‖ state constitutional restrictions on the legislature‘s decisionmaking were
invalid. (Id. at p. 1308.) The court held, however, that the majority vote in favor
of ratifying the Equal Rights Amendment was insufficient because each house had
concluded for itself that only a 60 percent supermajority would suffice. (Id. at
pp. 1308–1309.)
5
Subtler attempts at cabining the discretion of the state legislatures when
performing their article V functions have also been rejected. In American
Federation of Labor v. Eu (1984) 36 Cal.3d 687, we considered various state and
federal challenges to an initiative advocating a federal balanced budget
amendment. Among other provisions, the initiative proposed to suspend the
compensation and benefits of state legislators who would not take specific actions
to support a balanced budget amendment. (Id. at pp. 692–693.) We invalidated
this aspect of the initiative on the ground that it would coerce state legislators to
take actions in support of a particular constitutional amendment. (Id. at p. 694.)
Similarly, in Bramberg v. Jones (1999) 20 Cal.4th 1045 (Bramberg), we
considered whether a voter initiative could require future ballots for the United
States Congress to include the statement ―Disregarded Voters‘ Instruction on Term
Limits‖ next to the names of incumbents who did not support a federal term limits
amendment in the previous session. (Id. at p. 1047.) We held that the initiative
was ―impermissibly coercive‖ and thus violated article V. (Bramberg, at pp. 1060,
1063.)
In addition to the powers that article V expressly delegates, state
legislatures have played a crucial role in achieving the popular mobilization
necessary to ratify many of the amendments to the federal Constitution by issuing
resolutions to Congress and to other states. Today‘s opinion recounts numerous
examples throughout our nation‘s history, dating back to the founding era. (Maj.
opn., ante, at pp. 13–16.)
State legislatures have also established state conventions when Congress
has chosen that method of ratification. As today‘s opinion recounts, when
Congress submitted the Twenty-first Amendment to state conventions, state
legislatures across the country enacted legislation establishing how delegates were
to be chosen and when and where conventions would meet. (Brown, Ratification
6
of the Twenty-first Amendment to the Constitution of the United States (1938) pp.
521–700 [collecting laws]; see Stats. 1933, ch. 149, pp. 598–602 [establishing
procedures for Cal. convention to ratify the 21st Amend.].) Courts have found
these actions to be within the legislatures‘ broad discretion to act in connection
with the federal constitutional amendment process. (See State ex rel. Donnelly v.
Myers (Ohio 1933) 186 N.E. 918 (Myers); State ex rel. Tate v. Sevier (Mo. 1933)
62 S.W.2d 895, 898 (Sevier).)
From the discussion above, it is evident that judicial decisions in this area
have given state legislatures wide latitude in carrying out their article V functions
and taking actions reasonably related to the federal constitutional amendment
process. This judicial posture befits the nature of constitutional change.
Occasions for amending the federal Constitution are, by design, infrequent and
unusual. Each is a separate and solemn moment that requires a political process
calibrated to the perceived problem at hand. Courts have recognized that the
actors to whom article V delegates authority have broad discretion to address each
proposal for constitutional change on an individualized basis. History and
precedent suggest a very narrow role for the judiciary in monitoring the federal
amendment process.
B.
The texts of the federal and state Constitutions do not address whether the
Legislature may place an advisory measure on the ballot asking voters whether
they support a federal constitutional amendment. Although we have previously
recognized that such an advisory ballot measure ―does not offend article V‖
(American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 707), no court has
confronted the precise question before us. But the historical use of advisory
questions in connection with the federal constitutional amendment process sheds
7
light on the issue here. (See Dyer, supra, 390 F.Supp. at pp. 1303–1307
[consulting historical practice to illuminate the scope of state legislatures‘ article
V powers].)
The practice of state legislatures consulting the voters on federal
constitutional amendments must be understood in historical context. Since the
founding, ―the animating principle of our Constitution [is] that the people
themselves are the originating source of all the powers of government.‖ (Arizona
State Legislature v. Arizona State Redistricting Comm’n (2015) 576 U.S. __, __
[135 S.Ct. 2652, 2671].) Because constitutional commitments bind future
legislative majorities, cannot be easily undone, and speak on behalf of ―the People
of the United States‖ (U.S. Const. pmbl.), the framers repeatedly emphasized the
necessity of the people‘s consent in amending the federal Constitution.
At the state conventions for ratifying the federal Constitution, advocates for
ratification repeatedly invoked the sovereign will of the people as the sole ground
for amending its terms. In Pennsylvania, James Wilson remarked: ―This
Constitution . . . opens with a solemn and practical recognition . . . : — ‗We, the
people of the United States, in order to form a more perfect union, establish
justice, &c., do ordain and establish this Constitution for the United States of
America.‘ It is announced in their name — it receives its political existence from
their authority: they ordain and establish. What is the necessary consequence?
Those who ordain and establish have the power, if they think proper, to repeal and
annul.‖ (2 Elliot, The Debates in the Several State Conventions on the Adoption
of the Federal Constitution (1881) pp. 434–435 (Debates).) In North Carolina,
James Iredell similarly observed: ―[A]lterations can without difficulty be made,
agreeable to the general sense of the people. . . . Any amendments which either
Congress shall propose, or which shall be proposed by such general convention,
are afterwards to be submitted to the legislatures of the different states, or
8
conventions called for that purpose, as Congress shall think proper. . . . By
referring this business to the legislatures, expense would be saved; and in general,
it may be presumed, [that] they would speak the genuine sense of the people.‖ (4
Elliot, Debates, at p. 177; see 3 Elliot, Debates, at p. 37 [statement of Edmund
Pendleton at the Va. ratifying convention].) It is against this backdrop that state
legislatures have regularly used advisory ballot measures in connection with the
federal constitutional amendment process.
Today‘s opinion ably recounts the history of such advisory measures, with
examples from a multitude of states concerning a wide range of proposed
constitutional amendments from the late nineteenth century to the present day.
(Maj. opn., ante, at pp. 21–25.) Challenges to these measures have not succeeded.
(Id. at pp. 25–27.) As the court recognizes (id. at p. 18), it is appropriate in this
case to ―put significant weight upon historical practice.‖ (Noel Canning, supra,
573 U.S. at p. __ [134 S.Ct. at p. 2559] (italics omitted).)
This robust body of shared historical practice suggests a common source of
legislative authority. As noted, article V of the federal Constitution gives state
legislatures a central role in the process of proposing and ratifying federal
constitutional amendments. Under article V, the function of state legislatures is to
convey to Congress and to other states an expression of the state‘s sovereign will
with respect to federal law of the most fundamental character. Sovereignty
ultimately lies in ―the supreme authority in each State, the authority of the people
themselves‖ (The Federalist No. 39 (Cooke ed., 1961) p. 254 (Madison)), and the
ratification function assigned to state legislatures under article V is intended to
elicit ―a decisive expression of the people‘s will‖ (Dillon v. Gloss (1921) 256 U.S.
368, 374 (Dillon)). In submitting an advisory ballot measure to the electorate, a
state legislature acts in furtherance of its article V function by vesting the people‘s
will with a degree of solemnity that cannot be achieved through an opinion poll or
9
other means, and by ensuring and communicating to others that its support or
opposition to a proposed amendment accurately reflects the people‘s will. (Maj.
opn., ante, at pp. 37–38, 40–41.) It is no accident that the use of advisory ballot
measures by state legislatures has historically clustered around proposals for
amending the federal Constitution. ―This past use of advisory questions to inform
the federal constitutional process evidences a larger truth—a recognition of the
particular appropriateness of consulting the polity in the course of exercising
independent judgment with respect to such foundational matters.‖ (Id. at p. 38.)
Because it is particularly appropriate for a state legislature exercising its article V
function to enlist the people‘s voice as an aid to expressing the state‘s sovereign
will, the legislature‘s use of an advisory measure like Proposition 49 is properly
understood as an exercise of implied power under article V.
The concept of implied powers under the federal Constitution has been well
established since M’Culloch v. Maryland (1819) 17 U.S. 316 (M’Culloch), which
held (among other things) that Congress had the power to establish a national
bank. (Id. at p. 424.) Although M’Culloch is often cited for its interpretation of
the necessary and proper clause (M’Culloch, at pp. 411–421), the high court‘s
discussion of that clause appears only after the opinion has already made an
affirmative case for Congress‘s implied power to create the bank (id. at pp. 401–
411). M’Culloch‘s primary arguments for the constitutionality of the national
bank are based not on the necessary and proper clause but on the nature of the
federal Constitution itself.
Chief Justice Marshall began the court‘s opinion by noting that although
the Constitution does not enumerate a power to establish a bank, ―there is no
phrase in the instrument which, like the articles of confederation, excludes
incidental or implied powers; and which requires that everything granted shall be
expressly and minutely described. . . . The men who drew and adopted [the 10th]
10
amendment had experienced the embarrassments resulting from the insertion of
[the word ‗necessary‘] in the articles of confederation, and probably omitted it to
avoid those embarrassments. A constitution . . . requires, that only its great
outlines should be marked, its important objects designated, and the minor
ingredients which compose those objects, be deduced from the nature of the
objects themselves.‖ (M’Culloch, supra, 17 U.S. at pp. 406–407.) Unlike the
Articles of Confederation, the second article of which had narrowly limited the
powers of the Congress of the Confederation to those ―expressly delegated,‖ the
1787 Constitution was meant to constitute a new system of government and to
provide only the broad outlines of the powers of its component parts.
M’Culloch went on to say that although the word ―bank‖ or ―incorporation‖
does not appear in the federal Constitution, the enumerated powers of Congress
include the powers ―to lay and collect taxes; to borrow money; to regulate
commerce; to declare and conduct a war; and to raise and support armies and
navies.‖ (M’Culloch, supra, 17 U.S. at p. 407.) The court then explained that ―it
may with great reason be contended, that a government, entrusted with such ample
powers, on the due execution of which the happiness and prosperity of the nation
so vitally depends, must also be entrusted with ample means for their execution.
The power being given, it is the interest of the nation to facilitate its execution. It
can never be their interest, and cannot be presumed to have been their intention, to
clog and embarrass its execution, by withholding the most appropriate means. . . .
[¶] It is not denied, that the powers given to the government imply the ordinary
means of execution.‖ (Id. at pp. 408–409.) M’Culloch‘s elucidation of implied
powers was based on ―general reasoning‖ about the nature of a constitution. (Id.
at p. 411; see id. at p. 407 [―we must never forget, that it is a constitution we are
expounding‖].) Only after upholding Congress‘s implied power to create the bank
11
did the opinion turn to refuting the objection that the necessary and proper clause
is a limitation on, rather than a grant of, congressional power. (Id. at p. 412.)
M’Culloch‘s reasoning is not limited to powers granted in article I of the
federal Constitution. M’Culloch rests on a general principle that each power
enumerated in the federal Constitution may imply other powers necessary to the
exercise of the enumerated power. (See The Federalist No. 44, supra, at pp. 304–
305 (Madison) [―No axiom is more clearly established in law, or in reason, than
that wherever the end is required, the means are authorized; wherever a general
power to do a thing is given, every particular power necessary for doing it is
included.‖].) Subsequent decisions have confirmed that this principle of
constitutional construction applies to powers other than those assigned to
Congress. (See, e.g., Chambers v. NASCO, Inc. (1991) 501 U.S. 32, 43–44
[discussing implied powers of the federal courts]; American Ins. Ass’n v.
Garamendi (2003) 539 U.S. 396, 414–415 [discussing implied powers of the
President].)
Like articles I, II, and III of the federal Constitution, article V also conveys
power as much through ―what is reasonably implied‖ as through ―what is
expressed.‖ (Dillon, supra, 256 U.S. at p. 373; see id. at p. 376 [―As a rule the
Constitution speaks in general terms, leaving Congress to deal with subsidiary
matters of detail as the public interests and changing conditions may require; and
Article V is no exception to the rule.‖ (Fn. omitted.)].) In the article V context,
courts have recognized a variety of implied powers. The high court has held that
Congress has the power to place a time limit on ratification of a proposed
amendment by the states. (Dillon, at pp. 375–376.) And as noted, when Congress
chose the state convention method for ratifying the Twenty-first Amendment,
legislatures across the country established the mechanisms by which those
conventions would be constituted. In challenges to such actions, state courts held
12
that their legislatures had implied power under article V to establish conventions
when Congress elects the convention method of ratification. (See Sevier, supra,
62 S.W.2d at p. 898; Myers, supra, 186 N.E. at p. 918.)
Here the Legislature‘s briefing contends that ―[f]or the people of this state,
Proposition 49 represents their only means under article V of the federal
Constitution to be heard on this momentous question [i.e., whether Citizens United
should be overturned by constitutional amendment]. Elections on advisory ballot
questions have been held in a wide variety of other states to ascertain and to
formally convey the will of the voters as to whether the U.S. Constitution should
be amended in various respects, and the courts have repeatedly upheld the
submission of such measures to the electorate. The California Legislature is
likewise entitled to seek this input from the voters as a matter ‗incidental and
ancillary‘ to its constitutional power and responsibility to ratify proposed
amendments to the U.S. Constitution.‖ I would hold that the Legislature has
implied power under article V to submit Proposition 49 to the electorate because
the use of an advisory ballot measure uniquely serves to aid the Legislature‘s
expression of California‘s sovereign will.
As I explain in the rest of this opinion, the Legislature does not have
general authority under the California Constitution to submit advisory questions to
the electorate. But even if this means the Legislature has no authority under state
law to submit an advisory measure on a federal constitutional amendment (see dis.
opn., post), such a limitation must yield to the federal authority that article V
confers on the Legislature. As discussed above (ante, at pp. 4–6), courts have
consistently invalidated state law limitations, including state constitutional
limitations, on a state legislature‘s exercise of its federal functions under article V.
(See Leser, supra, 258 U.S. at p. 137; Hawke, supra, 253 U.S. at p. 231; Dyer,
13
supra, 390 F.Supp. at pp. 1307–1308; Trombetta, supra, 353 F.Supp. at pp. 577–
578; Walker, supra, 498 S.W.2d at p. 106.)
Because article V‘s ―delegation is not to the states but rather to the
designated ratifying bodies‖ (Dyer, supra, 390 F.Supp. at p. 1308), state
legislatures ―have the power and the discretion to determine for themselves how
they should discharge the responsibilities committed to them by the federal
government‖ (id. at p. 1307). It may be that certain elemental precepts of state law
— for example, state constitutional provisions that create a legislature and define
its membership — must remain operative when a state legislature exercises federal
functions. But this case does not concern the character or legitimacy of the
Legislature as the duly constituted and properly functioning legislature of
California. This case concerns the source and validity of a substantive power that
the Legislature seeks to exercise, and as this court has recognized, ―a state may
not, through restrictions imposed by state law, interfere with a state legislature‘s
ability to fulfill its function and responsibilities as contemplated by Article V of
the federal Constitution.‖ (Bramberg, supra, 20 Cal.4th at p. 1058; see Leser,
supra, 258 U.S. at p. 137 [a state legislature exercising ―a federal function derived
from the Federal Constitution . . . transcends any limitations sought to be imposed
by the people of a State‖].) Accordingly, even if state law does not authorize the
Legislature to submit Proposition 49 to the electorate, the Legislature may do so as
an exercise of its implied power under article V.
II.
The analysis above affirms the Legislature‘s broad latitude to act in the
unique context of amending the federal Constitution and amply justifies today‘s
narrow holding. Yet the court‘s opinion rests not only on the Legislature‘s role
under article V but also on ―the Legislature‘s power to investigate.‖ (Maj. opn.,
14
ante, at p. 42.) This doctrinal move unnecessarily calls into question the
narrowness of today‘s holding — for if investigation by use of an advisory ballot
measure ―is permitted as a necessary aid to the execution of other legislative
powers‖ (id. at p. 9), and if an advisory ballot measure is permissible so long as ―a
nexus exists between the matter investigated and some potential action the
Legislature has authority to undertake‖ (id. at p. 10), then what is to distinguish
the validity of an advisory ballot measure concerning a federal constitutional
amendment from the validity of such a measure concerning any ordinary issue of
public policy? Although the court expresses no view on that question (id. at p. 17,
fn. 11), the Chief Justice says there is no distinction at all. She would hold that the
Legislature may use advisory ballot measures ―with regard to any potential action
that the Legislature has authority to undertake,‖ including matters ―completely
unconnected with any article V issue.‖ (Conc. opn. of Cantil-Sakauye, C.J., ante,
at pp. 27, 31.)
I find unpersuasive the court‘s reliance on the Legislature‘s investigative
power as well as the Chief Justice‘s expansive view of the Legislature‘s power to
use advisory ballot measures. At the outset, I acknowledge that ―[u]nlike the
federal Constitution, which is a grant of power to Congress, the California
Constitution is a limitation or restriction on the powers of the Legislature.‖
(Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691.) ―The
legislature is vested with the whole of the legislative power of the state and may
deal with any subject within the scope of civil government unless it is restrained
by the provisions of the constitution, and the presumption that the legislature is
acting within the constitution holds good until it is made to appear in what
particular it is violating constitutional limitations.‖ (Macmillan Co. v. Clarke
(1920) 184 Cal. 491, 496–497.) But limitations on the Legislature‘s power need
not appear in the state Constitution ―expressly‖; they may exist ―by necessary
15
implication.‖ (Methodist Hospital, at p. 691.) Below I explain why it is a
necessary implication of our Constitution‘s text and history that the Legislature
lacks general authority to submit advisory measures to the electorate. Whether
exercising its investigative power or any other power under state law, the
Legislature may not statutorily alter the structure of government established by our
Constitution.
A.
We previously addressed the issue of advisory ballot measures in American
Federation of Labor v. Eu, supra, 36 Cal.3d 687, where concerned citizens sought
to place on the ballot a nonbinding resolution urging Congress to propose a federal
balanced budget amendment and directing the Secretary of State to apply for a
constitutional convention. We invalidated this advisory ballot measure on the
ground that it was not authorized by the initiative power. (Id. at pp. 714–715.)
Observing that the initiative ―is the power of the electors to propose statutes and
amendments to the Constitution and to adopt or reject them‖ (Cal. Const., art. II,
§ 8, subd. (a)), we explained that a measure that merely adopts a resolution or
declaration of policy is one that ―fails to adopt a statute.‖ (American Federation
of Labor v. Eu, at p. 715.)
This precedent makes clear that a citizen-initiated advisory measure asking
the electorate whether the Legislature should increase the gasoline tax, for
example, would be unconstitutional. The court in American Federation of Labor
v. Eu reasoned that the initiative power does not authorize the people to place an
advisory measure on the ballot. But upon a moment‘s reflection, it is evident that
our decision suggests a deeper structural principle.
Suppose citizens who support an increase in the gasoline tax qualify the
following initiative for the general election ballot: ―Proposition X. The People of
16
the State of California hereby enact the following statute: In the next general
election, the Secretary of State shall place on the ballot an advisory question
asking the people of California whether the Legislature should increase the tax on
retail sales of gasoline by 5 cents per gallon.‖ If Proposition X were to pass,
would the statute it enacted be constitutional? Of course not; otherwise, our
decision in American Federation of Labor v. Eu would be easily evaded and
reduced to a virtual nullity. But the invalidity of Proposition X does not arise from
the fact that it is an advisory ballot measure like the advisory initiative at issue in
American Federation of Labor v. Eu. Proposition X is not an advisory measure; it
enacts a statute that directs the Secretary of State to place an advisory measure on
the ballot at the next election.
The invalidity of Proposition X must be explained by reference to its
substance, not its form. Although Proposition X enacts a statute, the statute it
enacts asks voters to do something they lack authority to do: to adopt a resolution
with no binding legal consequence in their official capacity as the people of
California. We recognized this principle in American Federation of Labor v. Eu
when we said the provisions of the balanced budget initiative ―adopt, and mandate
the Legislature to adopt, a resolution which does not change California law and
constitutes only one step in a process which might eventually amend the federal
Constitution. Such a resolution is not an exercise of legislative power reserved to
the people under the California Constitution.‖ (American Federation of Labor v.
Eu, supra, 36 Cal.3d at p. 694.) In other words, the California Constitution
reserves to the people the power to enact laws by initiative or referendum, but it
does not reserve to the people the power to adopt nonbinding resolutions.
If Proposition X is invalid, then an identical statute enacted by the
Legislature would be invalid as well because ―[t]he electorate‘s legislative power
is ‗generally coextensive with the power of the Legislature to enact statutes.‘ ‖
17
(Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th
1016, 1042; see Santa Clara County Local Transportation Auth. v. Guardino
(1995) 11 Cal.4th 220, 253; Legislature v. Deukmejian (1983) 34 Cal.3d 658,
675.) In resisting this conclusion, the court cites our recognition that ― ‗the
reserved powers of initiative and referendum do not encompass all possible
actions of a legislative body.‘ ‖ (Maj. opn., ante, at p. 34, quoting American
Federation of Labor v. Eu, supra, 36 Cal.3d at p. 708.) But we made that
statement in the context of explaining that the Legislature, but not the citizenry,
has the authority to adopt or reject ―a resolution which merely expresses the
wishes of the enacting body.‖ (American Federation of Labor v. Eu, at p. 708.)
Nothing in American Federation of Labor v. Eu suggests that the Legislature has
authority that the citizenry lacks to place an advisory measure on the ballot.
Distinguishing Proposition X from its legislatively enacted twin would
require us to hold that our state Constitution does not authorize the citizenry, on its
own initiative, to vote on an advisory measure, but does authorize the citizenry to
do so when directed by the Legislature. Yet it seems dubious to say that our
Constitution privileges the ordinary lawmaking process over the initiative
qualification process as a gatekeeper for the people‘s exercise of their putative
advisory voice. After all, the Legislature is the agent of the people, not the other
way around.
As I explain more fully below, the infirmity of Proposition X is not that the
electorate, as opposed to the Legislature, has authorized the electorate to vote on a
resolution. It is that the people, having reserved to themselves only the powers of
initiative and referendum while vesting in the Legislature all other ―legislative
power of this State‖ (Cal. Const., art. IV, § 1), have no constitutional authority to
adopt a resolution. Such authority cannot be conferred by statute, whether enacted
by the people or by their representatives.
18
B.
When the California Constitution of 1849 was ratified, article IV, section 1
provided: ―The legislative power of this State shall be vested in a Senate and
Assembly, which shall be designated the Legislature of the State of California
. . . .‖ This language affirmed what the people had accomplished by forming the
Legislature: The people gave up the ―legislative power of this State‖ and vested it
in their duly elected representatives. The only exceptions were provided
expressly: The people retained the power to approve or reject proposed
constitutional amendments and proposed assumptions of debt. (Cal. Const. of
1849, arts. VIII, X.) By ratifying the 1849 Constitution and creating the
Legislature, the people of California established a republic. They divested
themselves of authority to exercise certain forms of power, they authorized the
Legislature to exercise those powers on their behalf, and they restrained their
ability to take those powers back without amending the state Constitution. Most
prominently, the people gave up the authority to enact laws and vested that
authority in the Legislature. That is why the initiative and referendum had to be
established by constitutional amendment in 1911 and why the Legislature does not
have authority to submit ordinary statutes for the citizenry to enact by ballot. (See
post, at pp. 21–23.)
Apart from the power to enact laws (what I will call ―lawmaking power,‖ as
distinguished from the more encompassing term ―legislative power‖), what powers
were included in the people‘s grant of ―legislative power‖ to their representatives
under article IV, section 1 of the 1849 Constitution? The basic contours of the
legislative power are established by its historical roots in the powers of
Parliament. In Ex parte D.O. McCarthy (1866) 29 Cal. 395 (McCarthy), we
explained: ―A legislative assembly, when established, becomes vested with all the
powers and privileges which are necessary and incidental to a free and
19
unobstructed exercise of its appropriate functions. These powers and privileges
are derived not from the Constitution; on the contrary, they arise from the very
creation of a legislative body . . . . [¶] What powers and privileges . . . a legislative
assembly takes by force and effect of its creation, are to be ascertained by a
reference to the common parliamentary law.‖ (Id. at p. 403.) We then cited
Luther Stearns Cushing‘s 1856 treatise, Elements of the Law and Practice of
Legislative Assemblies in the United States of America, for examples of
―necessary and incidental‖ powers. (McCarthy, at pp. 403–404.)
As relevant here, one of the traditional powers characteristic of a
parliamentary body was the power to adopt nonbinding resolutions. A resolution
―expresses the wishes of the enacting body.‖ (American Federation of Labor v.
Eu, supra, 36 Cal.3d at p. 708.) As Cushing explained, ―When the house
expresses any opinion, with reference to any subject before it, either public or
private; or its will to do something at a given time, (not incidental to the ordinary
course of business); or declares its adopting of general orders relative to its
proceedings; in all these cases, it expresses itself in the form of resolutions . . . .‖
(Cushing, Elements of the Law and Practice of Legislative Assemblies in the
United States, supra, at p. 314, par. 799.) Historically, resolutions served as a
means for one chamber of a legislative body to express an opinion directed at
another chamber, for a committee to express an opinion directed at the chamber as
a whole (id. at p. 778), for the legislature to express an opinion directed at the
executive or the ―crown‖ (id. at p. 359, par. 905), or for a state legislature to
express an opinion directed at the federal government (see, e.g., 4 Elliot, Debates,
supra, at pp. 540–545 [Ky. resolutions of 1798 & 1799]; id. at pp. 528–529 [Va.
resolutions of 1798]).
In vesting ―[t]he legislative power of this State‖ in the Legislature (Cal.
Const. of 1849, art. IV, § 1), the people gave up their authority to exercise the
20
power to adopt resolutions — that is, to express an opinion in their official
capacity as the people of California — and they restrained their authority to take
that power back. That power could not be returned to or shared with the people
without a state constitutional amendment or some other source of authority such as
article V of the federal Constitution. Under the California Constitution of 1849,
the people were not authorized to adopt a nonbinding resolution, just as they were
not authorized to enact ordinary law.
As the Legislature‘s briefing explains, our state Constitution is now more
democratic and less republican than it was in 1849. In 1911, amid widespread
perception that the Legislature had become corrupt and self-serving, Governor
Hiram Johnson and a wave of representatives were elected on the promise of
amending the state Constitution to give some power back to the people. (Cal.
Com. on Campaign Financing, Democracy by Initiative: Shaping California‘s
Fourth Branch of Government (1992) pp. 36–42.) Those representatives
proposed, and the people ratified, amendments to the California Constitution that
created the broad outlines of our current structure of government. Article IV,
section 1 now provides: ―The legislative power of this State is vested in the
California Legislature which consists of the Senate and Assembly, but the people
reserve to themselves the powers of initiative and referendum.‖
Importantly, the departures from republican government introduced in 1911
were specific and circumscribed. ―When the people established the Legislature,
they conveyed to it the full breadth of their sovereign legislative powers.
[Citation.] When they adopted the initiative power in 1911, they restored to
themselves only a shared piece of that power.‖ (Maj. opn., ante, at p. 34.) The
powers ―reserved‖ to the people did not ―encompass all possible actions of a
legislative body. Those powers are limited, under article II, to the adoption or
rejection of ‗statutes.‘ . . . [I]t does not include a resolution which merely
21
expresses the wishes of the enacting body . . . .‖ (American Federation of Labor
v. Eu, supra, 36 Cal.3d at p. 708.) After 1911, as before, the people retain no
authority to adopt a resolution. (Id. at p. 694 [―Such a resolution is not an exercise
of legislative power reserved to the people under the California Constitution.‖].)
That power continues to reside exclusively in the Legislature, and it cannot be
restored to the people without a constitutional amendment. The Legislature may
not ask the people to vote on an advisory measure because the Legislature may not
statutorily authorize the people to exercise a power that the people have
constitutionally vested in the Legislature and divested from themselves.
Of course, this does not mean the Legislature may not investigate the views
of the citizenry through committee hearings, town halls, opinion polls, meetings
with constituents, social media, and myriad other information-gathering
mechanisms aided by modern technology. It just means the Legislature may not
use the ballot for this purpose. The framers of the 1849 Constitution knew well
the ballot‘s singular political significance and the importance of circumscribing
the purposes for which it could be used. The words ―election,‖ ―electors,‖ and
―ballot‖ appeared in the original charter 69 times. Collectively, these usages
contemplated only three ways in which the ballot would be employed: to approve
the assumption of state debt (Cal. Const. of 1849, art. VIII), to ratify state
constitutional amendments (id., art. X), and to elect constitutional officers. The
terms of our state Constitution today continue to authorize use of the ballot for the
solemn and legally binding tasks of electing public officials and approving limited
and specific types of laws. Nothing in our Constitution contemplates use of the
statewide ballot — the traditional means for solemn expression of the people‘s
will — to gauge public opinion on a ―purely precatory‖ nonbinding resolution.
(American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 708.)
22
In sum, the legislative power — i.e., the full range of parliamentary power,
including the power to make laws and the power to adopt resolutions — was
vested in the Legislature and divested from the people in the 1849 Constitution.
That is why the 1911 amendment to article IV, section 1 was needed to authorize
the people, not just the Legislature, to exercise general lawmaking power. And
that is why the people do not have general authority to vote on advisory ballot
measures. No constitutional amendment has returned that power to the people or
authorized the Legislature to do so.
C.
This understanding of how legislative power has been vested, divested, and
shared throughout our constitutional history draws further support from the
indirect initiative process that existed between 1911 and 1966. In addition to
reserving to the people the powers of initiative and referendum, the 1911
amendment to article IV, section 1 of the California Constitution provided for
―direct‖ and ―indirect‖ initiatives, with the ―indirect‖ initiative process authorizing
the Legislature to place on the ballot, alongside a voter initiative, an alternative
measure for the electorate to approve or disapprove. (Cal. Const., art. IV, former
§ 1, as amended Oct. 10, 1911 [―The legislature may reject any measure so
proposed by initiative petition and propose a different one on the same subject
. . . .‖].) The specific authorizing language of this provision — ―The legislature
may . . . propose a different [measure] on the same subject‖ — would have been
unnecessary if the Legislature already had general power to submit ordinary
statutes for the people to enact by ballot. The indirect initiative confirms that the
people originally vested in the Legislature and divested from themselves the
power to enact ordinary laws, and then later authorized the Legislature to share a
limited portion of that vested power with the electorate. No similar measure has
23
ever authorized the Legislature to share the power to adopt nonbinding resolutions
with the electorate. It remains a power that the people have vested in the
Legislature and divested from themselves.
The Center for State and Local Government Law at the University of
California Hastings College of the Law, in an amicus curiae brief, contends that
the Legislature has always had general power to submit statutes for the voters to
enact and, because ―[t]he greater power includes the lesser,‖ also has power to
submit advisory measures. According to amicus curiae, the 1911 indirect
initiative provision ―acknowledged‖ rather than authorized the Legislature‘s power
to submit to the voters an alternative measure on the same subject as a citizens‘
initiative. For this proposition, amicus curiae relies on a report by the California
Constitution Revision Commission (Commission) discussing 1966 and 1968
revisions that included elimination of the indirect initiative. The ―Introduction‖ to
the report said: ―The Legislature can exercise all of the State‘s legislative power
and can act upon any subject unless the power has been delegated to the federal
government or exercise of the power is forbidden by the State or Federal
Constitution. It therefore is unnecessary to grant power in the Constitution which
the Legislature inherently possesses. It is appropriate, however, to prohibit or
compel by constitutional provision certain exercises of the Legislature‘s inherent
power. [Citation.] [¶] Our Constitution is encumbered by this type of unnecessary
grant of power to the Legislature and by provisions which the Legislature is
competent to enact by statute. Relying upon the rule of inherent legislative power,
the Commission often has formulated recommended revisions which free our
Constitution from these encumbrances.‖ (Cal. Const. Revision Commission,
Proposed Revision of the California Constitution (1968) p. 7; see conc. opn. of
Cantil-Sakauye, C.J., ante, at pp. 29–30 & fn. 36.)
24
But this quotation, which states the Commission‘s general objective of
eliminating unnecessary grants of power to the Legislature, does not illuminate
whether the specific revision eliminating the indirect initiative was an instance of
eliminating an unnecessary grant of power. As the Legislature‘s briefing notes,
the Commission‘s specific rationale for eliminating the indirect initiative was that
a separate proposed revision had ―reduced the percentage of signatures required
for an initiative statute from 8 to 5 percent, the same as required for the indirect
initiative. The indirect initiative merely adds an additional step to accomplish the
same result that can be accomplished under the initiative generally. Further, the
indirect initiative has been used only four times, and only once successfully.
Accordingly, it was determined that the indirect initiative could be deleted without
impairing the right of the people to propose laws through the initiative procedure.‖
(Cal. Const. Revision Commission, Proposed Revision of the California
Constitution (1966) p. 52; see People v. Kelly (2010) 47 Cal.4th 1008, 1040 &
fn. 55 [discussing history of elimination of indirect initiative].) Nothing in this
explanation suggests that the indirect initiative provision merely acknowledged the
Legislature‘s extant power to submit statutes to the electorate. The provision is
most naturally read to grant the Legislature a power it did not previously have.
Amicus curiae also contends that article II, section 12 of the California
Constitution — ―No amendment to the Constitution, and no statute proposed to
the electors by the Legislature or by initiative, that names any individual to hold
any office, or names or identifies any private corporation to perform any function
or to have any power or duty, may be submitted to the electors or have any effect‖
(italics added) — confirms that the Legislature has authority to place ordinary
statutes on the ballot. But this provision became part of our Constitution in 1950
(Cal. Const., art. IV, former § 26, as adopted Nov. 7, 1950, renumbered June 8,
1976), when the Legislature possessed the power of indirect initiative. Moreover,
25
well before 1950 and ever since, our state Constitution has required the
Legislature to submit to the people any statute that issues state bonds above a
certain amount (Cal. Const., art. XVI, § 1) or that amends or repeals an initiative
statute (id., art. II, § 10, subd. (c)). Thus, even after the indirect initiative was
eliminated in 1966, article II, section 12‘s reference to a ―statute proposed to the
electors by the Legislature‖ has served to ensure that statutes authorizing state debt
and statutes amending or repealing initiative statutes do not name any individual to
hold office or any private corporation to perform any function or duty. It does not
necessarily imply that the Legislature has general authority to propose statutes to
the voters. (Cf. Czesla, Review of Article IV of the California Constitution (1964)
p. 3 [art. II, § 12‘s prohibition ―apparently resulted from the enactment in 1948 of
an initiative constitutional amendment which made the Director of Social Welfare
an elective office and named the first director‖].)
Most telling, the Legislature in its briefing does not claim it has the power
to submit ordinary statutes to the electorate. When pressed on this point at oral
argument, counsel for the Legislature declined to assert the Legislature has such
power. This hesitation undermines the broad contention in the Legislature‘s
briefing that no action of the Legislature may be found ―inconsistent with the
‗structure‘ of the Constitution, without it violating some explicit prohibition
contained therein.‖ Even though our Constitution does not explicitly prohibit the
Legislature from submitting ordinary statutes to the electorate, the Legislature
refuses to claim it has such authority.
And for good reason: Apart from the powers of initiative and referendum,
the people have vested lawmaking power in the Legislature, thereby divesting it
from themselves, and the Legislature may not delegate that power to the people
without specific constitutional authorization. Such authorization has occurred at
various times through various provisions of our Constitution, demonstrating that
26
when our Constitution contemplates shared lawmaking authority between the
people and their representatives, it has said so explicitly. Article I‘s declaration
that ―[t]he people have the right to instruct their representatives‖ is another
provision that expressly authorizes shared accountability in lawmaking. (Cal.
Const., art. I, § 3, subd. (a); but cf. dis. opn., post, at pp. 9–10 [the people’s right to
instruct cannot empower the Legislature to submit advisory questions that the
people themselves cannot place on the ballot].) Absent such authorization, the
Legislature may not statutorily alter the constitutional allocation of lawmaking
power between the people and their representatives. And by the same logic, the
Legislature may not statutorily authorize the people to adopt a nonbinding
resolution because that power is constitutionally vested in the Legislature and not
retained by the people. This arrangement, with its clear lines of accountability, is
not the only way to structure a well-functioning lawmaking process. But it is the
way the people of California have chosen.
D.
The Chief Justice contends that advisory ballot measures have long been
used by states and localities, and that this historical practice suggests that such
measures are legally valid. (Conc. opn. of Cantil-Sakauye, C.J., ante, at pp. 2–17.)
But it is unclear how probative the examples from other jurisdictions are. For one
thing, the ―scores‖ (and how many ―scores‖ are there really?) ―of legislatively
initiated advisory ballot measures that have been submitted to statewide voters,
both in California and throughout the country from this nation‘s inception‖ (id. at
p. 38, fn. 39), do not seem all that impressive when considered in the context of
state constitutional histories that, in the aggregate, span several thousands of years.
In addition, we cannot assume that the constitutions and laws of the several states
— with their unique texts, structures, and histories — are uniform with respect to
27
the issue before us. For example, one important aspect of the California
Constitution is that the people, by ratifying the initiative and referendum
provisions in 1911, returned part of the legislative power to themselves, but not
the power to adopt resolutions. (American Federation of Labor v. Eu, supra, 36
Cal.3d at pp. 694, 708.) By contrast, at least three states from which the Chief
Justice draws examples authorize voters to place advisory measures on the ballot.
(Yute Air Alaska, Inc. v. McAlpine (Alaska 1985) 698 P.2d 1173, 1175–1177;
Simpson v. Cenarrusa (Idaho 1997) 944 P.2d 1372, 1376–1377; 10 Ill.Comp.Stat.
5/28-9.) Moreover, the Chief Justice identifies only one state high court that has
ever addressed an issue like the one before us. (Cranmer v. Thorson (S.D. 1896)
68 N.W. 202.) But that precedent predated South Dakota‘s constitutional
amendment providing for the power of initiative and referendum, and since then,
the South Dakota Supreme Court has been narrowly divided on whether the
legislature has authority to submit questions to the voters. (Wyatt v. Kundert (S.D.
1985) 375 N.W. 2d 186, 191; id. at p. 198 (dis. opn. of Wuest, J., joined by
Fosheim, C.J.).)
What is clear is that historical practice in California provides scant support
for the broad thesis that the Legislature has general authority to place advisory
measures on the statewide ballot. Although the Chief Justice cites a wide range of
local advisory measures, such measures are specifically authorized by statute
(Elec. Code, § 9603) and do not illuminate the constitutional question presented
here. As to the seven examples of statewide advisory measures identified by the
Chief Justice, three implicated the Legislature‘s role under article I, section 3, or
article V of the federal Constitution of expressing the state‘s sovereign will
concerning the election of United States Senators. (Maj. opn., ante, at pp. 21–23.)
That leaves four advisory measures that did not concern any function assigned to
the Legislature by the federal Constitution.
28
Among those four measures, the Chief Justice places greatest emphasis on
an 1879 advisory measure that asked the electorate whether it was ― ‗[f]or‘ ‖ or
― ‗[a]gainst‘ ‖ Chinese immigration. (Stats. 1877, ch. 5, § 1, p. 3.) According to
the Chief Justice, this measure, which resulted in a 96 percent majority voting
against Chinese immigration (Certificate of Vote on ―An Act to Ascertain and
Express the Will of the People of the State of California on the Subject of Chinese
Immigration‖ (1879)), shows that the delegates to the 1878–1879 Constitutional
Convention ―obviously assumed that the Legislature possessed and retained
authority to submit such an advisory measure to the statewide voters.‖ (Conc.
opn. of Cantil-Sakauye, C.J., ante, at p. 19; see id. at p. 29 [reiterating this point];
id. at p. 31 [again]; id. at p. 33 [and again].)
But this example should not guide our constitutional inquiry. As the Chief
Justice acknowledges, the 1879 advisory measure was motivated by ―virulent and
racist views‖ (conc. opn. of Cantil-Sakauye, C.J., ante, at p. 19), and this court
recently observed that ―[a]nti-Chinese sentiment was a major impetus for the
California Constitutional Convention of 1879‖ (In re Chang (2015) 60 Cal.4th
1169, 1172). Against this historical backdrop, it is fanciful to posit that the
constitutional delegates — a large portion of whom were members of the
Workingmen‘s Party, whose slogan was ―The Chinese Must Go!‖ (ibid.) — had a
well-considered view of the constitutionality of the anti-Chinese advisory
measure.
Scarcely a decade after ratification of the Fourteenth Amendment to the
federal Constitution — section 1 of which says no state shall ―deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction equal protection of the law‖ — those delegates wrote the
infamous former article XIX (titled ―Chinese‖) into the 1879 Constitution,
expressly prohibiting employment of the Chinese, authorizing the Legislature and
29
localities to remove the Chinese from their jurisdictions, and directing the
Legislature to ―discourage their immigration by all the means within its power.‖
(Cal. Const., art. XIX, as ratified 1879; see In re Chang, at pp. 1172–1173.) The
delegates also constitutionalized the denial of the right to vote to any ―native of
China.‖ (Cal. Const., art. II, § 1, as ratified 1879.) Given the fact that the anti-
Chinese advisory measure received ―the blessing of the constitutional delegates‖
(conc. opn. of Cantil-Sakauye, C.J., ante, at p. 19) alongside these other blatantly
unconstitutional provisions, I do not think the 1879 example sheds much light on
the constitutionality of statutes placing advisory measures on the ballot. For the
same reason, I would not assign any weight to the Legislature‘s submission of
another anti-Chinese advisory measure in 1891 asking whether English literacy
should be a requirement for voting. (Stats. 1891, ch. 113, pp. 704–705.) The fact
that an advisory ballot measure, as a procedural mechanism, ―is not by its nature
invariably discriminatory or offensive‖ (conc. opn. of Cantil-Sakauye, C.J., ante,
at p. 38, fn. 39) does not explain why we should think that legislators who did
submit advisory measures that were patently discriminatory during an era of
―xenophobia‖ (In re Chang, at p. 1172) thought or cared much about the
constitutionality of such measures.
The two remaining examples are a pair of 1933 measures asking voters
whether the Legislature should divert gasoline tax funds to pay down debt on
outstanding highway bonds. (Stats. 1933, ch. 435, § 3, p. 1126.) The voter guide
explained that the measures proposed an alternative means of paying down bond
debt that had been previously approved by the voters, as was (and still is) required
by article XVI of our state Constitution. (Ballot Pamp., Special Elec. (June 27,
1933) argument in favor of Props. 9 & 10, p. 11.) The Legislature may well have
believed that the alternative payment plans, like the original debts, required voter
approval. (Cal. Const., art. XVI, § 1 [Legislature may not create debt of over a
30
certain amount unless a law enacted by a two-thirds vote in both houses and
approved by a majority of voters ―provide[s] ways and means‖ for payment of
interest and principal].) In any event, the legality of these measures was never
tested; they were placed on the ballot just one month before the election, and both
were soundly defeated at the polls. (Stats. 1933, p. xc, Propositions Submitted to
Vote of Electors, Special Election (June 27, 1933) Measures Defeated, Nos. 9, 10.)
In sum, the Legislature‘s past uses of advisory ballot measures hardly
demonstrate a ―well accepted‖ practice (conc. opn. of Cantil-Sakauye, C.J., ante,
at p. 18), let alone one whose constitutionality has been implicitly affirmed. As
Justice Chin notes, ―the most recent of these advisory measures occurred over
eight decades ago, long before the development of modern polling techniques, the
Internet, and other methods of ascertaining the people‘s wishes in political
matters.‖ (Dis. opn., post, at p. 12.) If anything, the paucity of historical
examples, with none in the last 80 years, tends to cast doubt on the existence and
validity of the power claimed here.
E.
No member of the court suggests that American Federation of Labor v. Eu
was wrongly decided or that our holding in that case may be evaded by an
initiative statute that directs the Secretary of State to place an advisory measure on
the ballot. But today‘s opinion rejects the argument that ―if, under American
Federation of Labor v. Eu, supra, 36 Cal.3d 697, the people are limited to placing
on the ballot only proposed laws, then the Legislature must be too . . . .‖ (Maj.
opn., ante, at p. 34.) Noting that the Legislature‘s powers are broader than the
people‘s initiative power (American Federation of Labor v. Eu, at p. 708), the
court contends that the Legislature‘s broader powers authorize it to pass a statute
placing an advisory measure on the ballot even though the people may not do so
31
by initiative. I agree with this thesis where, as here, the Legislature is exercising
its implied power under article V of the federal Constitution. But I do not agree
when it comes to advisory ballot measures on ordinary matters of public policy.
The court, like the Legislature, does not rest its reasoning ―on the syllogism
that the legislative power includes the power to enact statutes, Senate Bill No.
1272 takes the form of an enacted statute, and thus for that reason alone the bill
and Proposition 49 are within a constitutional source of power.‖ (Maj. opn., ante,
at p. 7.) Instead, the court accepts the Legislature‘s claim that a ―non-lawmaking
power‖ — the power to investigate — ―encompass[es] the authority to enact a
statute placing an advisory question before the voters.‖ (Id. at p. 8.) This
invocation of the investigative power is unpersuasive for several reasons.
As an initial matter, it is odd to characterize Senate Bill No. 1272, which
the Legislature labeled the ―Overturn Citizens United Act‖ (Stats. 2014, ch. 175,
§ 1), as an effort to investigate the electorate‘s views. The Legislature‘s findings
include declarations that Citizens United ―presents a serious threat to self-
government‖ (Stats. 2014, ch. 175, § 2, subd. (e)); that ―[a] February 2010
Washington Post-ABC News poll found that 80 percent of Americans oppose the
ruling in Citizens United‖ (id., subd. (k)); and that ―Article V of the United States
Constitution empowers and obligates the people of the United States of America to
use the constitutional amendment process to correct those egregiously wrong
decisions of the United States Supreme Court that go to the heart of our
democracy and the republican form of self-government‖ (id., subd. (l)). This is
the language of public mobilization, not investigation, and it fits comfortably
within the Legislature‘s role under article V in marshaling vigorous and solemn
expressions of California‘s sovereign will on whether to amend our nation‘s basic
charter. It blinks reality to suggest that the Legislature — plainly aware of opinion
32
polls showing that broad majorities of Americans are opposed to Citizens United
— enacted Senate Bill No. 1272 in order to investigate the citizenry‘s views.
More fundamentally, the court‘s invocation of the investigative power in
this context is a novel expansion of how we have historically construed this power.
Our case law on the investigative power uniformly consists of disputes concerning
the Legislature‘s prerogative to establish committees, boards, commissions, and
agencies, and to vest such entities with authority to compel evidence and
testimony and to hold noncompliant witnesses in contempt. Those issues are far
afield from the question before us. As a review of the cases shows, nothing in this
court‘s treatment of the Legislature‘s power to investigate suggests it encompasses
the authority to submit an advisory measure to the electorate.
In McCarthy, supra, 29 Cal. 395, a newspaper editor was held in contempt
by the state Senate and jailed after he refused to answer questions posed by the
Senate in the course of investigating charges of bribery against its members. (Id.
at pp. 397–399.) The petitioner challenged his detention, claiming the Senate
lacked power to investigate the bribery charges. We rejected the claim and held
that the Senate‘s power to investigate included the power to compel testimony
from witnesses and to hold persons in contempt for refusing to testify. (Id. at
pp. 403–407.)
In In re Battelle (1929) 207 Cal. 227 (Battelle), the state Senate adopted a
resolution authorizing a committee of senators to investigate a possible price-
fixing conspiracy among cement manufacturers. The committee subpoenaed
witnesses and required them to bring certain records and documents within their
control, but various witnesses refused. The Senate adopted a resolution holding
the witnesses in contempt. The petitioner was arrested and sought habeas corpus
relief in this court. In addressing the petitioner‘s claims, we said that ―in many
instances, in order to the preparation of wise and timely laws the necessity of
33
investigation of some sort must exist as an indispensable incident and auxiliary to
the proper exercise of legislative power.‖ (Id. at p. 241.) We further explained
that ―the inherent and auxiliary power reposed in legislative bodies to conduct
investigations in aid of prospective legislation has already been held to carry with
it the power in proper cases to require and compel the attendance of witnesses and
the production of books and papers by means of legal process and to institute and
carry to the extent of punishment contempt proceedings in order to compel the
attendance of such witnesses and the production of such documentary evidence as
may be legally called for in the course of such proceedings, whether conducted by
the legislative body or a branch of it, directly or through properly constituted
committees thereof.‖ (Ibid.) We rejected the claim that the use of such
compulsory process meant the Legislature was exercising a judicial function in
violation of the separation of powers. (Id. at pp. 241–244.) But we ultimately
granted the petitioner relief on the ground that the contempt order did not
adequately explain how the questions the petitioner refused to answer were
pertinent to the issue the Legislature was investigating. (Id. at pp. 246–247.) Like
McCarthy, Battelle had nothing to do with advisory ballot measures.
The other cases cited in today‘s opinion are similarly far afield. Both
Swing v. Riley (1939) 13 Cal.2d 513 and Special Assembly Interim Committee v.
Southard (1939) 13 Cal.2d 497 (Southard) addressed issues concerning the proper
appointment of legislative committees. Parker v. Riley (1941) 18 Cal.2d 83 held
that a statute creating the California Commission on Interstate Cooperation did not
violate separation of powers. The key passage in that case discussing the power to
investigate gives context and substance to this power: ― ‗The ascertainment of
facts in its essence is not a legislative function. It is simply ancillary to legislation.
It may be accomplished in divers ways. While it may be done by the Legislature
itself, it is a responsibility not infrequently placed upon committees and
34
individuals. . . . Frequent illustrations of this practice also are found respecting
permanent boards or commissions. . . . The ascertainment of pertinent facts for
legislation is within the power of the lawmaking department of government.
When a legislative body has a right to do an act it must be allowed to select the
means within reasonable bounds. It is not precluded from delegating incidental
powers which it may exercise itself in aid of its primary functions. . . . Familiar
methods are by appropriating the results of studies already made by itself or by
others, by conducting an inquiry through a committee of its members, or by
utilizing an existing commission or board to make and report the results of a
research.‘ ‖ (Id. at p. 91.) Amid these mentions of committees, boards,
commissions, studies, and research, there is not the slightest hint that the
Legislature may submit an advisory measure to the electorate pursuant to its
investigative power.
The novelty of the court‘s reasoning has an even deeper dimension. As
noted, neither the Legislature nor any member of this court has invoked the
Legislature‘s ordinary lawmaking power as its source of authority for enacting
Senate Bill No. 1272, even though a duly enacted statute (as opposed to, say, a
mere committee resolution or executive order) is required to place Proposition 49
on the ballot. The court instead resorts to the Legislature‘s incidental power to
investigate. Yet in every case cited by the court regarding the scope of the
Legislature‘s incidental powers, the Legislature acted without passing a statute.
(See Battelle, supra, 207 Cal. at pp. 230–240; Southard, supra, 13 Cal.2d at
pp. 498–502; Swing v. Riley, supra, 13 Cal.2d at pp. 514–517; McCarthy, supra,
29 Cal. at pp. 397–399; Parker v. Riley, supra, 18 Cal.2d at pp. 89–91.) Today‘s
opinion holds for the first time that the Legislature‘s investigative power is itself a
font of authority, separate and apart from its ordinary lawmaking power, for the
Legislature to enact statutes. This holding implies that the Legislature may enact
35
certain statutes pursuant to its investigative power that it could not enact pursuant
to its ordinary lawmaking power. After all, if the Legislature‘s ordinary
lawmaking power were sufficient in this case, presumably the court‘s analysis
would have stopped there.
But to say that the investigative power itself encompasses a power to enact
a statute, whether or not the statute could be enacted pursuant to the Legislature‘s
ordinary lawmaking power, appears to contravene the settled principle that the
Legislature‘s ordinary lawmaking power under our state Constitution is ―plenary.‖
(California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 254.) In
other words, the Legislature‘s lawmaking power is ―[f]ull,‖ ―complete,‖ and
―entire.‖ (Black‘s Law Dict. (9th ed. 2004) p. 1273, col. 1.) This court has never
held that the Legislature‘s authority under the California Constitution to make
laws may be grounded in anything other than its lawmaking power, and we have
never suggested that the investigative power or any incidental power subsumes a
portion of the Legislature‘s power to make laws. Of course, the Legislature may
exercise its lawmaking power to pass laws that accomplish investigative aims.
(See, e.g., Ed. Code, §§ 10600–10601.5; id., § 10600, subd. (a) [requiring state
Dept. of Education to maintain an information system that ―make[s] complete,
current, and reliable information relating to education available to the
Legislature‖].) But that is quite different from saying that the investigative power
itself authorizes the Legislature to pass such laws.
Today‘s opinion cautions that ―[t]he investigative power is not unlimited‖
(maj. opn., ante, at p. 9) and holds only that this power authorizes an advisory
ballot measure as ―a reasonable and lawful means of assisting the Legislature in
the discharge of its article V-related functions‖ (id. at p. 43). Whether this holding
can be limited to the article V context remains to be seen. If all that is required is
―any reasonable connection‖ between the advisory measure and the Legislature‘s
36
potential exercise of any power it lawfully possesses (id. at p. 40), then I find it
difficult to discern any meaningful justiciable limit on the Legislature‘s use of
advisory ballot measures.
In sum, today‘s application of the Legislature‘s investigative power finds
no support in our precedent and disturbs the settled understanding that the
Legislature‘s lawmaking power is plenary. It is hard to believe that the people of
California — having vested ―[t]he legislative power of this State‖ in the
Legislature (Cal. Const., art. IV, § 1), including the power to adopt a resolution
(American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 708) — at the same
time contemplated that the Legislature, by exercising an incidental power, could
restore to the people a portion of that constitutionally vested legislative power.
III.
The court‘s reliance on the investigative power is unnecessary to reach
today‘s limited holding. As explained above, Senate Bill No. 1272 is a valid
exercise of the Legislature‘s implied power under article V of the federal
Constitution. Although the Chief Justice would uphold advisory ballot measures
―with regard to any potential action that the Legislature has authority to
undertake‖ (conc. opn. of Cantil-Sakauye, C.J., ante, at p. 27), the court wisely
declines to go so far. A decision of this court opening the door to advisory ballot
measures on virtually any subject would potentially transform the way electoral
politics and policymaking are conducted in California.
I do not doubt that advisory ballot measures can provide the Legislature
with valuable information about the electorate‘s views on public policy. But such
prosaic uses of advisory measures do not exhaust the possibilities. For example,
advisory measures can be used to undercut the people‘s initiative power, a concern
expressed by Citizens in Charge, an ―advocacy group dedicated to protecting and
37
expanding citizens‘ initiative, referendum, and recall rights throughout America,‖
in an amicus curiae letter supporting the original emergency petition for writ of
mandate in this matter. It is a common tactic for opponents of an initiative to
qualify a competing measure on the ballot, thereby creating voter confusion.
(Garrett, Direct Democracy, in Research Handbook on Public Choice and Public
Law (Farber & O‘Connell edits., 2010) p. 155.) A legislative majority opposed to
an initiative could swell the ballot with advisory measures on the same subject.
Such an approach would be much easier than qualifying a competing initiative but
no less effective in confusing and exhausting the electorate. (See dis. opn., post, at
p. 9 [―the potential, and the temptation, for legislative interference with the
people‘s power of initiative is real‖].) As many California voters would agree, it
is already hard enough to cast an informed vote on the statewide ballot given the
multiple propositions and competing propositions each year. The prospect of also
having to vote on advisory measures can only worsen voter confusion and fatigue.
In addition, advisory measures could be used to influence voter sentiment
about a qualified initiative. Suppose, not unrealistically, that one political party
controls majorities in the Legislature and the governorship, and that the majority
party opposes tax cuts. Suppose further that concerned citizens qualify an
initiative proposing broad-based tax cuts. If the Legislature had general authority
to put advisory measures on the ballot, then presumably the Legislature could pose
the following questions on the same ballot as the tax-cutting initiative:
Proposition A. To pay for any future tax cuts, should the Legislature
consider cutting funding for police departments?
Proposition B. To pay for any future tax cuts, should the Legislature
consider cutting funding for state parks?
Proposition C. To pay for any future tax cuts, should the Legislature
consider cutting funding for higher education?
38
Moreover, advisory ballot measures could be used to entrench a political
majority. Consider, for example, the 2010 gubernatorial race between Jerry
Brown and Meg Whitman. Whitman, a wealthy business executive, faced
controversies over her alleged inside dealings with an investment bank and the
retention of a housekeeper whose undocumented status she allegedly knew.
Suppose Democrats had controlled majorities in the Legislature and the
governorship during the 2010 campaign season. If the Legislature had general
authority to put advisory measures on the ballot, then presumably the Legislature
could have posed the following questions on the 2010 ballot:
Proposition D. To promote fairness, should the Legislature consider a law
that would prohibit business executives from earning incomes more than
100 times the incomes of their average employees?
Proposition E. To discourage corruption, should the Legislature consider a
law that would more closely monitor business executives involved in inside
deals with investment banks?
Proposition F. To restore jobs to hard-working Americans, should the
Legislature consider a law that would heavily penalize those who
knowingly employ undocumented immigrants as housekeepers?
In these examples above, the advisory measures would be designed to cue
voters to defeat the tax-cutting initiative (Propositions A, B, and C) or to defeat
Meg Whitman (Propositions D, E, and F). I am not sure whether these measures
would bear a ―reasonable connection‖ to the Legislature‘s lawful power to act
under today‘s opinion. (Maj. opn., ante, at p. 40.) But if we are not to ―inquire
into underlying motives‖ (id. at p. 39), and if the Legislature may ―obtain the
views of the voters concerning all manner of subjects reasonably within a
legislative body‘s authority to act‖ (conc. opn. of Cantil-Sakauye, C.J., ante, at
p. 2), then on what basis could this court foreclose the Legislature from placing
such measures on the ballot?
39
It is easy to dismiss the possibility of such canny tactics as speculative or
remote. But even if advisory measures in local elections have not been used in
such shrewd ways, there is little assurance that the same would be true in
statewide elections, where matters of broader scale and impact are typically at
stake, and where much greater sums of money and higher levels of political
sophistication are brought to bear on electioneering tactics. Moreover, because
advisory measures provide an avenue for influencing voters right at the moment of
voting, they are likely to be far more effective — and certainly far less expensive
— than running ads on television or the Internet, or using mail, e-mail, text
messages, or social media to reach voters. In a hard-fought political battle, the
ability to prime voters with messages on the ballot itself presents an enormously
attractive option. And there would be no point in calling such tactics abusive, for
they would be perfectly legal and fair game if this court were to hold that the
Legislature has general authority to place advisory measures on the ballot. As the
proponents of Proposition 49 well know, the judiciary plays a critical role in
setting the rules of politics, and it is no surprise when political actors seek every
possible advantage within those rules.
It is true that the Legislature has not used such tactics in modern times. But
in my view, that is evidence that the claimed power does not exist and that our
political system has not needed it. Of course, I cannot say for sure whether a
judicial decision recognizing such a power would actually change the landscape of
California politics in the way suggested above. But the risk is not one that our
Constitution requires us to tolerate.
* * *
The California Constitution, like the United States Constitution and other
state constitutions, establishes the fundamental structure of government. It is
40
within this structure that the Legislature exercises its power. No issue is more
basic to the structure of government than what types of matters may be placed on
the ballot for a vote of the citizenry. Our state Constitution establishes the rules by
which voters may propose initiatives and referenda, and it requires the Legislature
to submit constitutional amendments and certain statutes to the voters for
approval. This constitutional structure constrains the power of legislative
majorities. Just as the Legislature does not have general authority to submit
statutes for voters to approve, it does not have general authority to use advisory
ballot measures to poll the electorate. As a matter of state law, the Legislature
may not alter its constitutional role as the people‘s accountable representative
body by directing the people, at the Legislature‘s convenience, to exercise a
merely hortatory, nonbinding voice in ordinary public affairs. If this court were to
revise the balance our Constitution has struck between direct and representative
democracy, it would have potentially serious consequences for our political
system.
The case before us is different. Here the Legislature is playing a role that
originates not in our state Constitution but in article V of the federal Constitution.
Under article V, the Legislature has wide latitude to marshal the electorate‘s views
in order to express California‘s sovereign will to Congress and to other states on
whether to amend the nation‘s fundamental charter. The court properly confines
today‘s holding to advisory measures concerning federal constitutional
amendments. Such a measure is all that is at issue here, and I concur in the
judgment upholding its placement on a statewide ballot.
LIU, J.
41
DISSENTING OPINION BY CHIN, J.
I dissent. In August 2014, this court correctly removed Proposition 49 from
the ballot. It should now prevent a similar measure from being placed on the
ballot in the future. Placing advisory measures on the ballot — a right denied even
to the people (American Federation of Labor v. Eu (1984) 36 Cal.3d 687
(American Federation)) — is no part of the legislative function and does not come
within either the Legislature‘s lawmaking or ancillary powers.
I. Factual and Procedural Background
In 2014, the Legislature adopted a resolution urging Congress to call a
constitutional convention to propose an amendment to the United States
Constitution that would overrule the decision in Citizens United v. Federal
Election Comm’n (2010) 558 U.S. 310 (Citizens United). (Assem. Joint Res.
No.1, Stats. 2014 (2013-2014 Reg. Sess.) res. ch. 77.) The Legislature also
enacted Senate Bill No. 1272 (2013-2014 Reg. Sess.) (Senate Bill 1272). (Stats.
2014, ch. 175.) That bill directed the Secretary of State to submit an ―advisory
question to the voters‖ at the November 2014 election asking whether Congress
should propose, and the Legislature ratify, an amendment to the United States
Constitution that would overturn Citizens United. (Stats. 2014, ch. 175, § 4.)
The Governor permitted Senate Bill 1272 to become law without his
signature. He issued a statement explaining why he did so: ―[T]his bill and the
advisory vote it requires has no legal effect whatsoever. The only way to overturn
a Supreme Court decision such as Citizens United is by the process outlined in
Article V of the United States Constitution. In fact, the California State
Legislature recently took action in this regard by approving a joint resolution
calling upon Congress to convene a Constitutional convention for this very
purpose.‖ (Gov. Edmund G. Brown, Jr., Letter to Members of Cal. State Senate,
July 15, 2014.) The Governor said he understood the motivation behind the bill
because he, too, believes Citizens United was wrongly decided. ―But,‖ he wrote,
―we should not make it a habit to clutter our ballots with nonbinding measures as
citizens rightfully assume that their votes are meant to have legal effect.
Nevertheless, given the Legislature‘s commitment on this issue, even to the point
of calling for an unprecedented Article V Constitutional Convention, I am willing
to allow this question to be placed before the voters. [¶] By allowing SB 1272 to
become law without my signature, it is my intention to signal that I am not
inclined to repeat this practice of seeking advisory opinions from the voters.‖
(Ibid.)
The Secretary of State designated the matter Proposition 49 and began
preparing to place it on the ballot. Petitioners Howard Jarvis Taxpayers
Association et alia (Howard Jarvis) promptly filed a petition for writ of mandate
seeking to prevent Proposition 49 from being placed on the ballot. After a divided
Court of Appeal denied relief, Howard Jarvis filed the instant petition in this court.
In August 2014, we issued an order to show cause and directed the Secretary of
State to refrain from taking any further action to place Proposition 49 on the
November 2014 ballot.
Our August 11, 2014 order to show cause quoted American Federation‘s
explanation of why it is necessary to remove a dubious measure from the ballot:
― ‗The presence of an invalid measure on the ballot steals attention, time and
2
money from the numerous valid propositions on the same ballot. It will confuse
some voters and frustrate others, and an ultimate decision that the measure is
invalid, coming after the voters have voted in favor of the measure, tends to
denigrate the legitimate use of the initiative procedure.‘ (American Federation of
Labor v. Eu (1984) 36 Cal.3d 687, 697.)‖ We explained that we issued the stay
―[b]ecause the proposition‘s validity is uncertain, because this court in American
Federation made clear that substantial harm can occur if an invalid measure is
permitted to remain on the ballot, and because the measure, which the parties
agree would have no legal effect, can be placed on a future ballot at the
Legislature‘s direction if the court ultimately determines it is valid . . . .‖ Justice
Liu issued a separate concurring statement, while the Chief Justice dissented from
the issuance of the stay.
After full briefing, the merits of Howard Jarvis‘s challenge to Proposition
49 are now before us. Although I disagree with the majority‘s resolution of the
merits, I agree that we should decide them even though the question is technically
moot. The Legislature needs to know whether it can pass a similar measure
placing the same advisory question on a future ballot. (Maj. opn., ante, at p. 6.)
II. Discussion
In American Federation, supra, 36 Cal.3d 687, the question was whether
the people, invoking the right of initiative, could place on the ballot an advisory
measure urging the Legislature to apply to Congress to convene a constitutional
convention to propose that the United States Constitution be amended to require a
balanced federal budget. (Id. at pp. 690-691.) We held that the people could not
do that because the advisory measure exceeded the scope of the initiative power.
(Id. at p. 694.) The question now before us is whether the Legislature can place an
advisory measure on the ballot when the people cannot do so themselves. Just as
the merits of a balanced budget amendment were irrelevant to the holding in
3
American Federation, so, too, the merits of overturning Citizens United, supra,
558 U.S. 310, are irrelevant to the issue here.
At the outset, I stress that I agree fully that the Legislature‘s lawmaking
power is plenary. ―Unlike the federal Constitution, which is a grant of power to
Congress, the California Constitution is a limitation or restriction on the powers of
the Legislature. [Citations.] Two important consequences flow from this fact.
First, the entire law-making authority of the state, except the people‘s right of
initiative and referendum, is vested in the Legislature, and that body may exercise
any and all legislative powers which are not expressly or by necessary implication
denied to it by the Constitution. [Citations.] In other words, ‗we do not look to
the Constitution to determine whether the legislature is authorized to do an act, but
only to see if it is prohibited. [Citation.]‘ [¶] Secondly, all intendments favor the
exercise of the Legislature‘s plenary authority: ‗If there is any doubt as to the
Legislature‘s power to act in any given case, the doubt should be resolved in favor
of the Legislature‘s action. Such restrictions and limitations [imposed by the
Constitution] are to be construed strictly, and are not to be extended to include
matters not covered by the language used.‘ ‖ (Methodist Hosp. of Sacramento v.
Saylor (1971) 5 Cal.3d 685, 691, italics added; accord, County of Riverside v.
Superior Court (2003) 30 Cal.4th 278, 284.)
But this plenary lawmaking authority does not apply here. Proposition 49
does not make law. As the Governor explained, and as everyone agrees, it is
merely an advisory measure that would have no legal effect even if passed. In one
sense, Senate Bill 1272 is a law because it directs the advisory measure to be
placed on the ballot. But the action it directs is legally meaningless. The
Legislature‘s power to pass it cannot be based on its lawmaking authority. If the
Legislature has the power to place an advisory measure on the ballot, it must be
grounded on something else.
4
The Legislature also ―has the power to engage in activity that is incidental
or ancillary to its lawmaking functions.‖ (The Zumbrun Law Firm v. California
Legislature (2008) 165 Cal.App.4th 1603, 1614, citing Parker v. Riley (1941) 18
Cal.2d 83, 89.) As we explained long ago, ―[a] legislative assembly, when
established, becomes vested with all the powers and privileges which are
necessary and incidental to a free and unobstructed exercise of its appropriate
functions. These powers and privileges are derived not from the Constitution; on
the contrary, they arise from the very creation of a legislative body, and are
founded upon the principle of self preservation. The Constitution is not a grant,
but a restriction upon the power of the Legislature, and hence an express
enumeration of legislative powers and privileges in the Constitution cannot be
considered as the exclusion of others not named unless accompanied by negative
terms. A legislative assembly has, therefore, all the powers and privileges which
are necessary to enable it to exercise in all respects, in a free, intelligent and
impartial manner, its appropriate functions, except so far as it may be restrained by
the express provisions of the Constitution, or by some express law made unto
itself, regulating and limiting the same.‖ (Ex parte D. O. McCarthy (1866) 29 Cal.
395, 403 [listing several of these powers and privileges].) But these ancillary
powers are not unlimited.
Often a limitation on the Legislature‘s power is implied rather than
expressed in the Constitution. For example, the Legislature may not allow district
attorneys to refile accusatory pleadings that have reached final judgments.
(People v. King (2002) 27 Cal.4th 29, 34-37.) Similarly, the Legislature may not
require a criminal court to obtain a prosecutor‘s consent before ordering a juvenile
disposition for a minor charged with a serious crime in lieu of a sentence under the
Penal Code. (People v. Thomas (2005) 35 Cal.4th 635, 639-642.) These
prohibitions derive from the principle of separation of powers. Here, the
5
separation of powers is not among the legislative, executive, and judicial branches
of government but between the Legislature and the people. The power of the
ballot belongs to the people.
The California Constitution itself so indicates. ―All political power is
inherent in the people.‖ (Cal. Const., art. II, § 1.) ―The legislative power of this
State is vested in the California Legislature . . . , but the people reserve to
themselves the powers of initiative and referendum.‖ (Cal. Const., art. IV, § 1.)
―The initiative is the power of the electors to propose statutes and amendments to
the Constitution and to adopt or reject them.‖ (Cal. Const., art. II, § 8, subd. (a).)
The Constitution provides three circumstances in which the Legislature
must place matters on the ballot if the action the Legislature proposes is to take
effect. First, the Legislature ―may amend or repeal an initiative statute by another
statute that becomes effective only when approved by the electors unless the
initiative statute permits amendment or repeal without their approval.‖ (Cal.
Const., art. II, § 10, subd. (c).) Second, ―Each measure providing for the
preparation, issuance and sale of bonds of the State of California shall hereafter be
submitted to the electors in the form of a bond act or statute.‖ (Cal. Const., art.
XVI, § 2, subd. (a), 2d par.) Third, the Legislature ―may propose an amendment
or revision of the Constitution‖ (Cal. Const., art. XVIII, § 1), but the ―proposed
amendment or revision shall be submitted to the electors and if approved by a
majority of votes thereon takes effect the day after the election unless the measure
provides otherwise.‖ (Cal. Const., art. XVIII, § 4.) Additionally, a different
provision seems to imply that the Legislature may, if it chooses, place a ―statute‖
on the ballot for the electorate to ratify. (Cal. Const., art. II, § 12.)
Because the California Constitution is a restriction on the Legislature‘s
powers, not a grant of powers, designating these circumstances in which the
Legislature may place matters on the ballot does not, by itself, necessarily mean
6
the Legislature may not do so in other circumstances. But those circumstances are
designed to protect the people’s right to confirm an action the Legislature
proposes, not to give the Legislature general access to the ballot. The overall
constitutional scheme shows that the power of the ballot is reserved to the people,
not the Legislature.
This brings us to American Federation, supra, 36 Cal.3d 687. As noted,
the issue there was whether the people could place on the ballot an advisory
measure urging a constitutional amendment to require a balanced federal budget.
(Id. at pp. 690-691.) We ―conclude[d] that the measure exceeds the scope of the
initiative power under the controlling provisions of the California Constitution
(art. II, § 8 and art. IV, § 1). The initiative power is the power to adopt
‗statutes‘ — to enact laws — but the crucial provisions of the balanced budget
initiative do not adopt a statute or enact a law. They adopt, and mandate the
Legislature to adopt, a resolution which does not change California law and
constitutes only one step in a process which might eventually amend the federal
Constitution. Such a resolution is not an exercise of legislative power reserved to
the people under the California Constitution.‖ (Id. at p. 694, fn. omitted.) We
explained that the initiative ―is not a public opinion poll. It is a method of
enacting legislation, and if the proposed measure does not enact legislation, or it if
seeks to compel legislative action which the electorate has no power to compel, it
should not be on the ballot.‖ (Id. at p. 695.)
We further explained that ―the reserved powers of initiative and referendum
do not encompass all possible actions of a legislative body. Those powers are
limited, under article II [of the California Constitution], to the adoption or
rejection of ‗statutes.‘ . . . [I]t does not include a resolution which merely
expresses the wishes of the enacting body, whether that expression is purely
precatory or serves as one step in a process which may lead to a federal
7
constitutional amendment.‖ (American Federation, supra, 36 Cal.3d at p. 708.)
We summarized that the initiative ―functions . . . as a reserved legislative power, a
method of enacting statutory law. The present initiative does not conform to that
model.‖ (Id. at p. 715.)
Viewing the constitutional provisions as a whole, it is clear that if this court
had reached a different conclusion in American Federation, supra, 36 Cal.3d 687,
and held, as the dissent had urged, that the advisory measure was a valid exercise
of the initiative power, the Legislature would not have the power to place a
measure like Proposition 49 on the ballot. That power would have been reserved
to the people.
But it is incorrect to conclude that because the people cannot do it, the
Legislature can. As we have said, ―the power of the people through the statutory
initiative is coextensive with the power of the Legislature.‖ (Legislature v.
Deukmejian (1983) 34 Cal.3d 658, 675.) If the people cannot place a matter on
the ballot, neither can the Legislature. The people can be heard directly only
through the ballot, either by electing their representatives or by the initiative or
referendum process. The specified circumstances in which the Legislature has
recourse to the ballot exist solely to implement the people‘s right to accept or
reject what the Legislature is proposing. But the Legislature does not otherwise
need the ballot. It can act itself. Other than in the constitutionally prescribed
circumstances, the Legislature should not be permitted to hijack the ballot to serve
its own agenda.
Permitting the Legislature to place advisory measures on the ballot would
allow it to greatly interfere with the people‘s reserved initiative rights. The
Legislature could easily place an advisory measure on the ballot that would
compete with an initiative measure. As one commentator explains, ―voter
confusion often results from the appearance on the ballot of competing ballot
8
initiatives on the same subject, a tactic often used by opponents of the first
initiative. Because savvy political actors know that voters frequently react to
confusion by voting ‗no‘ on both measures, opponents of a particular initiative
may work to qualify a competing measure in the hope that it will result either in
both being defeated or in the more favorable competing measure being enacted
instead of the initial proposal.‖ (Garrett, Direct Democracy, in Research
Handbook on Public Choice and Public Law (Farber & O‘Connell edits., 2010) p.
155.)
―Voter initiatives have been compared to a ‗ ―legislative battering ram‖ ‘
because they ‗ ―may be used to tear through the exasperating tangle of the
traditional legislative procedure and strike directly toward the desired end.‖ ‘
(Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22
Cal.3d 208, 228.)‖ (Tuolumne Jobs & Small Business Alliance v. Superior Court
(2014) 59 Cal.4th 1029, 1035.) The Legislature might sometimes be hostile to the
people‘s use of this battering ram and do what it can to defeat an initiative
measure. Placing competing measures on the ballot might be one way to do that.
No improper motives appear in this case, but the potential, and the temptation, for
legislative interference with the people‘s power of initiative is real. ―In light of
the initiative power‘s significance in our democracy, courts have a duty ‗ ―to
jealously guard this right of the people‖ ‘ . . . .‖ (Ibid.) The way to guard against
legislative interference with the people‘s right of initiative is to leave the ballot for
the people‘s use, not the Legislature‘s.
Citing California Constitution, article I, section 3, subdivision (a), which
gives the ―people . . . the right to instruct their representatives,‖ the Legislature
suggests that placing an advisory measure on the ballot is a way for the people to
provide this instruction. But the people themselves cannot place an advisory
measure on the ballot. (American Federation, supra, 36 Cal.3d 687.) A
9
constitutional right given the people cannot empower the Legislature to do
something the people are prohibited from doing.
The Legislature also argues its ancillary power to investigate gives it the
authority to place an advisory measure on the ballot. It does have the power to
investigate to support its lawmaking function. The California Constitution
expressly provides this power. ―The Legislature or either house may by resolution
provide for the selection of committees necessary for the conduct of its business,
including committees to ascertain facts and make recommendations to the
Legislature on a subject within the scope of legislative control.‖ (Cal. Const., art.
IV, § 11.) We described the included power in Ex parte D. O. McCarthy as the
power ―[t]o investigate, by the testimony of witnesses or otherwise, any subject or
matter, in reference to which it has power to act; and, consequently, to protect
parties, witnesses and counsel, in their attendance, when summoned, or having
occasion to attend for that purpose.‖ (Ex parte D. O. McCarthy, supra, 29 Cal. at
p. 404, italics omitted; see In re Battelle (1929) 207 Cal. 227, 241 [similar].)
But the Legislature can, and already does, do all of this. Additionally, as
Justice Liu observed in his concurring statement when this court issued the August
11, 2014 order to show cause in this case, ―[i]f the Legislature wants to
commission Gallup to do a poll on Citizens United,‖ it may do so. Modern
technology, including the Internet, with all of the interaction and exchange of
information and views it facilitates, gives the Legislature ample ability to ascertain
the electorate‘s wishes. It does not need recourse to the ballot to perform its
proper function. The potential for interference with the people‘s reserved right of
initiative greatly outweighs any marginal value an advisory measure might have to
aid the Legislature‘s investigation into the electorate‘s wishes.
The majority confidently asserts that an advisory measure like this one
would never compete or interfere with an initiative measure the people placed on
10
the ballot. (Maj. opn., ante, at p. 42, fn. 16.) Maybe, maybe not. I cannot predict
what the Legislature might try to do in the future. Perhaps it will never test the
accuracy of this assertion. Perhaps this is a one-time event, as the Governor
urged. It appears, however, the majority would be willing to prevent a future
advisory measure that does threaten to impede the people‘s right of initiative. But
considering the validity of an advisory measure on a case-by-case basis would
entangle the courts in legislative affairs far more than simply concluding the
Legislature does not possess a nonlawmaking authority it does not need to function
fully and effectively. With the constitutional exceptions, the Legislature does not
need access to the ballot. But the ballot is the people‘s only way to legislate
directly.
The Legislature also cites past occasions in which it placed advisory
measures on the ballot — all but one more than a century ago, the most recent in
the 1930‘s — as showing it has this power. But the Legislature‘s power to do so
was never challenged. ―The obvious answer to this contention is that usage and
custom, no matter how long continued, cannot create a right in the legislature that
otherwise it does not possess . . . .‖ (Special Assembly Int. Com. v. Southard
(1939) 13 Cal.2d 497, 508-509.)
The past precedent is also far from impressive. Two of the measures were
driven by anti-Chinese immigration sentiment that was prevalent at the time. (See
In re Chang (2015) 60 Cal.4th 1169.) In 1877, the Legislature asked the voters to
indicate whether they were ― ‗For Chinese Immigration‘ ‖ or ― ‗Against Chinese
Immigration.‘ ‖ (Stats. 1877, ch. 5, § 1, p. 3.) In 1891, the Legislature asked the
voters whether they were for or against ― ‗an educational qualification requiring
every voter to be able to write his name and read any section of the Constitution in
the English language.‘ ‖ (Stats. 1891, ch. 113, § 1, p. 115.) This is hardly sterling
11
precedent. Given the anti-Chinese immigration sentiment, it is unsurprising no
one challenged the Legislature‘s authority to place the measures on the ballot.
Measures in 1891, 1909, and 1911 concerned the ultimate passage of the
Seventeenth Amendment to the United States Constitution, which gave the people
the right to elect United States Senators directly. (Stats. 1911, ch. 387, § 1, pp.
704-705; Stats. 1909, ch. 405, § 2, p. 691; Stats. 1891, ch. 48, § 1, pp. 46-47.)
Indeed, the 1909 and 1911 measures merely anticipated the Seventeenth
Amendment‘s ratification by allowing the voters to state who should serve as
United States Senators. Because the measures supported the electorate‘s direct
voting right, it is unsurprising no one challenged them on this basis.
Finally, one month before the 1933 election, the Legislature placed
advisory measures on the ballot asking two questions regarding whether it should
divert money from the gasoline tax funds for specified purposes. (Stats. 1933, ch.
435, § 3, p. 1126.) The measures were defeated at the polls. (Stats. 1933,
Propositions Submitted to Vote of Electors, Special Election (June 27, 1933)
Measured Defeated, Nos. 9, 10, p. xc.) Because the measures were placed on the
ballot only a month before the election and were then defeated, it is also
unsurprising that no one challenged them.
Thus, the most recent of these advisory measures occurred over eight
decades ago, long before the development of modern polling techniques, the
Internet, and other methods of ascertaining the people‘s wishes in political
matters. As Justice Liu aptly notes, ―If anything, the paucity of historical
examples, with none in the last 80 years, tends to cast doubt on the existence and
validity of the power claimed here.‖ (Conc. opn. of Liu, J., ante, at p. 31.)
The Legislature also argues that the power to place Proposition 49 on the
ballot derives from article V of the United States Constitution. As relevant, that
article provides that ―on the application of the legislatures of two-thirds of the
12
several states,‖ Congress ―shall call a convention for proposing amendments‖ to
the Constitution. This provision certainly gives the Legislature the power to apply
to Congress to call a convention for that purpose. I have no doubt that allowing
the Legislature to place an advisory measure like Proposition 49 on the ballot
would not violate article V. (See Bramberg v. Jones (1999) 20 Cal.4th 1045,
1058.) Indeed, as the Legislature notes, many states have permitted their
legislatures to do so. But nothing in article V compels a state to permit advisory
measures like Proposition 49 when doing so would infringe on a constitutional
right reserved to the people.
Given all the other powers the Legislature has, including the right to
investigate, it does not need the additional power to place advisory measures on
the ballot in order to exercise its article V authority. Depriving the Legislature of
this power does not materially affect its ability to exercise this authority. Indeed,
the Legislature has already applied to Congress regarding the precise subject
Proposition 49 was to address. (Assem. Joint Res. No.1, Stats. 2014 (2013-2014
Reg. Sess.) res. ch. 77.)
For these reasons, I would hold the Legislature has no power to place an
advisory measure like Proposition 49 on the ballot.
CHIN, J.
13
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Howard Jarvis Taxpayers Association v. Padilla
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S220289
Date Filed: January 4, 2016
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Counsel:
Bell, McAndrews & Hiltachk, Thomas W. Hiltachk and Charles H. Bell, Jr., for Petitioners.
No appearance for Respondent.
Diane F. Boyer-Vine, Jeffrey A. DeLand, Robert A Pratt; Strumwasser & Woocher, Fredric D. Woocher,
Michael J. Strumwasser and Dale K. Larson for Real Party in Interest.
Douglas T. Kendall, Elizabeth B. Wydra, David H. Gans and Tom Donnelly for Constitutional
Accountability Center as Amicus Curiae on behalf of Real Party in Interest.
Ronald A. Fein; Arnold & Porter, Steven L. Mayer and Amie L. Medley for Free Speech for People, Inc.,
as Amicus Curiae on behalf of Real Party in Interest.
Michael B. Salerno, Steven Bonorris and Nedda Black for The Center for State and Local Government Law
as Amicus Curiae on behalf of Respondent and Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Thomas W. Hiltachk
Bell, McAndrews & Hiltachk
455 Capitol Mall, Suite 600
Sacramento, CA 95814
(916) 442-7757
Fredric D. Woocher
Strumwasser & Woocher
10940 Wilshire Boulevard, Suite 2000
Los Angeles, CA 90024
(310) 576-1233
2