Senate of the State of Cal. v. Jones

KENNARD, J.

I dissent.

I cannot join the majority in its hasty decision to declare invalid, and to remove from the March 2000 election ballot, an initiative measure, Proposition 24, for which more than a million California voters have signed petitions. Because this challenge to Proposition 24 presents issues that are close and difficult, and because there has been inadequate time to give these issues the thoughtful attention and deliberation they deserve, I have not attempted to determine whether Proposition 24 is valid or invalid. Rather, consistent with this court’s decision under similar circumstances in Brosnahan v. Eu (1982) 31 Cal.3d 1 [181 Cal.Rptr. 100, 641 P.2d 200], I would deny the peremptory writ of mandate without prejudice to deciding these issues if and when the electorate enacts Proposition 24.

The court’s rush to decision has been extraordinary. On October 28, 1999, this court received and filed the petition for writ of mandate challenging Proposition 24. This court then learned that a decision on the merits would need to issue by Monday, December 13, the deadline for finalizing ballot materials. Nonetheless, on November 10 this court issued an order, in which I did not join, establishing an expedited briefing schedule and directing respondents to show cause and present oral argument on Wednesday, December 8. Only eight court days elapsed between the filing of the final party brief (November 24) and oral argument. Only three court days elapsed between oral argument and the filing of the decision, which is final immediately.

Only once before, and that was 50 years ago and under very different circumstances, has this court decided the merits of a preelection single-subject challenge to an initiative. Never before has this court invalidated an initiative measure for violation of the single-subject rule. Never before has this court decided such complex issues so quickly with so little justification for haste.

I. Preelection Review

As this court has stated, “it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures *1170after an election rather than to disrupt the electoral process by preventing the exercise of the people’s franchise, in the absence of some clear showing of invalidity.” (Brosnahan v. Eu, supra, 31 Cal.3d 1, 4; see also Farley v. Healey (1967) 67 Cal.2d 325, 327 [62 Cal.Rptr. 26, 431 P.2d 650] [stating that a court will remove an initiative from the ballot only “on a compelling showing that a proper case has been established for interfering with the initiative power”].) This court has explained the strong preference for postelection review this way: “The general rule favoring postelection review contemplates that no serious consequences will result if consideration of the validity of a measure is delayed until after an election. Under those circumstances, the normal arguments in favor of the ‘passive virtues’ suggest that a court not adjudicate an issue until it is clearly required to do so. If the measure passes, there will be ample time to rule on its validity. If it fails, judicial action will not be required.” (Legislature v. Deukmejian (1983) 34 Cal.3d 658, 666 [194 Cal.Rptr. 781, 669 P.2d 17].)

This court has identified a very few situations in which preelection review of a ballot measure is justified. In Perry v. Jordan (1949) 34 Cal.2d 87 [207 P.2d 47], until today this court’s only preelection decision on a single-subject challenge to an initiative, the initiative’s opponents had brought a preelection single-subject challenge in the superior court, which had issued an alternative writ. The initiative proponents then brought an original mandate proceeding in this court, requesting that we order the Secretary of State to put the initiative on the ballot. Because the superior court could have issued an eleventh-hour ruling barring the initiative from the ballot, we agreed to and did determine the merits, holding that the initiative did not violate the single-subject rule.

A different sort of exigent situation was presented in Legislature v. Deukmejian, supra, 34 Cal.3d 658, which did not involve a single-subject challenge. There, this court exercised preelection review to declare invalid a proposed initiative requiring a second legislative redistricting within a 10-year period, in violation of article XXI of the state Constitution. We noted that postelection review posed particular problems because election officials would not know which districts to use while a postelection challenge was pending. Also, the measure was proposed for a special election, costing up to $15 million, which would not be held if the measure was stricken. (See also Assembly v. Deukmejian (1982) 30 Cal.3d 638 [180 Cal.Rptr. 297, 639 P.2d 939] [entertaining preelection challenge to referenda on reapportionment statutes].)

None of the circumstances identified in these prior decisions as justifying preelection review exist here. Passage of Proposition 24 would not have *1171posed the sort of postelection difficulties that concerned this court in Legislature v. Deukmejian, supra, 34 Cal.3d 658. It was not the only measure to be considered at a costly special election; rather, it would have been one of many matters on a regular election ballot. Nor was there a risk of a last-minute superior court ruling barring a valid initiative, as there was in Perry v. Jordan, supra, 34 Cal.2d 87.

This court has said that preelection review is justified also if the initiative is invalid, not because of its substance, but because the electorate lacks the power to adopt it in the first instance as, for example, when the measure is not legislative in character. (American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 695-696 [206 Cal.Rptr. 89, 686 P.2d 609] [preelection review of initiative requiring Legislature to adopt resolution asking Congress to pass a balanced-budget amendment].) But a single-subject challenge does not present this kind of generic or jürisdictional issue. Rather, a single-subject challenge requires a careful examination of the measure’s particular provisions or, in other words, a review of its substance. (See Schmitz v. Younger (1978) 21 Cal.3d 90, 93 [145 Cal.Rptr. 517, 577 P.2d 652].)

Until today, the prospect that supporters and opponents of an initiative might spend “many millions of dollars” in an election campaign (maj. opn., ante, at p. 1156, fn. 10) has never been considered an extraordinary circumstance justifying preelection review. Because all statewide initiative campaigns are likely to be costly, reliance on this factor effectively abrogates this court’s declared preference for postelection review of challenges to initiatives, substituting instead a presumption in favor of preelection review.

Absent one of the extraordinary circumstances that this court has previously identified, the decision whether to undertake preelection review of an initiative or other ballot measure requires consideration of two factors: the complexity of the issues presented and the time available to decide them. When there is ample time before an election deadline, a court may undertake preelection review involving moderately complex issues, including single-subject challenges. For instance, in California Trial Lawyers Assn. v. Eu (1988) 200 Cal.App.3d 351 [245 Cal.Rptr. 916], a Court of Appeal decision that before today was the only preelection decision invalidating a California initiative measure for a single-subject violation, the challenge was brought at such an early stage that after the court’s decision the initiative proponents had time to circulate petitions for a substitute initiative measure and qualify it for the same election. (See Insurance Industry Initiative Campaign Com. v. Eu (1988) 203 Cal.App.3d 961, 963, fn. 1, 964, fn. 2 [250 Cal.Rptr. 320]; see also League of Women Voters v. Eu (1992) 7 Cal.App.4th 649, 658 [9 Cal.Rptr.2d 416] [challenge brought on April 24; ballot preparation deadline *1172August 10].) But when, as here, a petitioner brings a challenge to an initiative only six weeks before the ballot preparation deadline, leaving insufficient time for the normal deliberative process, a court should make a preelection ruling “only where the invalidity of the proposed measure is clear beyond a doubt.” (Gayle v. Hamm (1972) 25 Cal.App.3d 250, 258 [101 Cal.Rptr. 628]; see also Bramberg v. Jones (1999) 20 Cal.4th 1045, 1053 [86 Cal.Rptr.2d 319, 978 P.2d 1240] [noting that this court had declined to decide challenge brought a few weeks before ballot submission deadline even though initiative was obviously invalid].)

Although the state Constitution declares that an initiative “embracing more than one subject may not be submitted to the electors” (Cal. Const., art. II, § 8, subd. (d)), this court has never before interpreted this language as mandating preelection review. (See Brosnahan v. Eu, supra, 31 Cal.3d 1, 4-5 (conc. opn. of Broussard, J.).) Indeed, postelection review of single-subject challenges has been the norm in this court. Only once—in Perry v. Jordan, supra, 34 Cal.2d 87, which I have discussed above—has this court decided a single-subject challenge to an initiative before an election. By comparison, this court has many times decided single-subject challenges after elections. (E.g., Legislature v. Eu (1991) 54 Cal.3d 492 [286 Cal.Rptr. 283, 816 P.2d 1309]; Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245 [279 Cal.Rptr. 325, 806 P.2d 1360]; Raven v. Deukmejian (1990) 52 Cal.3d 336 [276 Cal.Rptr. 326, 801 P.2d 1077]; Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805 [258 Cal.Rptr. 161, 771 P.2d 1247]; Brosnahan v. Brown (1982) 32 Cal.3d 236 [186 Cal.Rptr. 30, 651 P.2d 274]; Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33 [157 Cal.Rptr. 855, 599 P.2d 46]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208 [149 Cal.Rptr. 239, 583 P.2d 1281].)

Unless the invalidity of Proposition 24 is perfectly obvious or clear beyond a doubt, preelection review is not appropriate here because, in the words of Justice Broussard, “[t]ime is lacking for the careful study and consideration, the collegial discussion, and the mutual criticism of opinion drafts which an issue of this importance requires.” (Brosnahan v. Eu, supra, 31 Cal.3d 1, 5 (conc. opn. of Broussard, J.); see also American Federation of Labor v. Eu, supra, 36 Cal.3d 687, 718 (dis. opn. of Lucas, J.) [questioning the propriety or necessity of a preelection “rush to judgment” declaring an initiative invalid].)

II. Single-subject Rule

Is it clear beyond a doubt that Proposition 24 violates the single-subject rule? Hardly. The majority opinion takes more than 10,000 words and 34 *1173pages (in slip opinion format) to decide the issue. As I explain below, the initiative proponents, who insist that the initiative does not violate the single-subject rule as this court has consistently interpreted it, have presented plausible arguments that the majority does not persuasively rebut and that this court has not had time to fully consider.

To avoid unduly interfering with the right of initiative, this court has held that the single-subject rule should be “construed liberally.” (Fair Political Practices Com. v. Superior Court, supra, 25 Cal.3d 33, 38.) An initiative measure satisfies the single-subject rule “ ' “if, despite its varied collateral effects, all of its parts are ‘reasonably germane’ to each other,” and to the general purpose or object of the initiative.’ ” (Legislature v. Eu, supra, 54 Cal.3d 492, 512, italics omitted; accord, Kennedy Wholesale, Inc. v. State Bd. of Equalization, supra, 53 Cal.3d 245, 253; Raven v. Deukmejian, supra, 52 Cal.3d 336, 346; Brosnahan v. Brown, supra, 32 Cal.3d 236, 245.) It is not necessary that each of the measure’s provisions “effectively interlock in a functional relationship,” but only that “the various provisions are reasonably related to a common theme or purpose.” (Legislature v. Eu, supra, at p. 513.)

Had it been submitted to the electorate and adopted, Proposition 24 would have amended the state Constitution—in particular article HI, section 8; article IV, sections 4 and 12; and article XXI—to do all of the following: (1) roll back legislators’ salaries to $75,000 per year; (2) take away the power of the California Citizens Compensation Commission to set salaries for state constitutional officers, and instead permit the commission only to make recommendations that would be acted upon by the Legislature, subject to voter approval at the next statewide election; (3) reduce legislators’ per diem to $75 per day with a limit of 120 days per year; (4) forfeit legislators’ salaries and per diem expenses if the Legislature fails to send a budget bill to the Governor by June 15th of any year, with any legislation to recover forfeited salary requiring voter approval; and (5) require this court in the first instance to draw up redistricting plans for legislative, Board of Equalization, and congressional districts, with the plans to then be submitted to the voters for approval.

Two of the matters that Proposition 24 addresses—-legislators’ salaries and reapportionment—at first blush may seem separate and unrelated. But the initiative’s proponents (by which I mean both the respondents in this proceeding and the amici curiae who have filed briefs supporting Proposition 24) present coherent and substantial arguments suggesting that this first impression may well be mistaken because all the initiative’s provisions are reasonably germane to a single subject within the meaning of this court’s past decisions. Without endorsing these arguments, and without reciting all of them in detail, I summarize those I find most substantial.

*1174According to the proponents, the common theme or purpose to which all of Proposition 24’s various provisions are reasonably related is voter control of basic conditions of state legislators’ employment. They argue that the basic conditions of any employment agreement are compensation and job security. Legislators’ salaries and per diem reimbursements are their compensation. Reapportionment of legislative districts determines their opportunities for reelection, and hence job security. The proponents argue that because legislators work for the people of California, the people are in essence their employers and should have the final say, which they do not now have, on these basic employment conditions. ,

The proponents offer arguments to explain why each of Proposition 24’s various provisions is reasonably related to the common purpose of establishing voter control over the most basic employment conditions, compensation and job security. The provision rolling back legislators’ salaries to $75,000 per year establishes a base of compensation and rescinds recent salary increases that the proponents regard as excessive. The provision removing the California Citizens Compensation Commission’s authority to set salaries for state officers, including legislators, substitutes a new mechanism for determining legislators’ salaries under which the voters will always have the last word. The measure reducing legislators’ per diem to $75 per day with a limit of 120 days per year will prevent excessive compensation under the guise of per diem reimbursement. The provision forfeiting legislators’ salaries and per diem expenses if the Legislature fails to send a budget bill to the Governor by June 15th of any year, with any legislation to recover forfeited salary requiring voter approval, will ensure that legislators earn their salaries by fulfilling their basic constitutional responsibilities, and it will also deter legislators from prolonging legislative sessions beyond June 15 to collect additional per diem. Finally, requiring this court in the first instance to draw up redistricting plans for legislative, Board of Equalization, and congressional districts, with the plans to then be submitted to the voters for approval, will ensure that the voters choose their legislators rather than the legislators choosing their voters.

The proponents acknowledge that Proposition 24 will significantly affect not only legislators, but also other constitutional officers. They offer substantial arguments in defense of this aspect of Proposition 24.

First, the proponents argue that since term limits for state legislators went into effect, legislators whose terms have expired have increasingly moved to occupy other elective or appointive offices in state government. Thus, all but two of the state constitutional officers whose salaries are now set by the California Citizens Compensation Commission are former legislators. Thus, *1175they argue, effective control of legislators’ compensation requires control of the compensation of these officers also. In a similar vein, the proponents argue that because congressional seats and positions on the Board of Equalization are attractive career moves for California legislators, those legislators should not control reapportionment of the districts for those offices, but instead this court should determine reapportionment, subject to voter approval.

Alternatively, the proponents argue that Proposition 24’s impact on compensation and districting for persons other than California legislators may be defended as permissible collateral effects. (See Kennedy Wholesale, Inc. v. State Bd. of Equalization, supra, 53 Cal.3d 245, 254.) The constitutional provision under which the California Citizens Compensation Commission sets legislators’ salaries (Cal. Const., art. Ill, § 8) includes legislators within the larger category of “state officers.” Rather than drastically rewriting the provision to distinguish legislators from other state officers, the drafters of Proposition 24 accepted the provision as written and made the minimum changes necessary to vest in the voters, rather than the Commission, final authority over these salary increases.

In the same way, the state constitutional provision governing reapportionment (Cal. Const., art. XXI) lumps together state legislative, congressional, and Board of Equalization districts and imposes a single set of reapportionment for all alike. The proponents argue that rather than drastically rewriting the provision to sever state legislative district reapportionment from reapportionment for congressional and Board of Equalization districts, the drafters merely accepted the existing classification and adopted the most economical changes necessary to give the electorate final reapportionment authority over state legislative districts. Under this view, therefore, the effects on other districts are accidental or “collateral.”

Finally, the proponents argue that establishing voter control over basic employment conditions, the subject to which they maintain all of Proposition 24’s provisions are reasonably germane, is not excessively general in light of this court’s past decisions. Subjects of at least equal breadth, in their view, that this court has found not excessively general include “incumbency reform” (Legislature v. Eu, supra, 54 Cal.3d 492, 512), “political practices” (Fair Political Practices Com. v. Superior Court, supra, 25 Cal.3d 33, 43), “property tax relief’ (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d 208, 231), criminal justice reform (Raven v. Deukmejian, supra, 52 Cal.3d 336, 347; Brosnahan v. Brown, supra, 32 Cal.3d 236), and the cost of insurance and regulation thereof (Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d 805, 842). (See also Yoshioka v. *1176Superior Court (1997) 58 Cal.App.4th 972, 992 [68 Cal.Rptr.2d 553] [limiting noneconomic damages for drivers who break the law]; California Gillnetters Assn. v. Department of Fish & Game (1995) 39 Cal.App.4th 1145, 1162 [46 Cal.Rptr.2d 338] [conservation of marine resources]; League of Women Voters v. Eu, supra, 7 Cal.App.4th 649, 659 [budget balancing].)

III. Other Issues

Petitioners here, the Senate of the State of California and others, challenge Proposition 24 not only as violating the single-subject rule, but also on the grounds that its provisions amount to a constitutional revision and that it is deliberately misleading. The majority does not address the latter two grounds. Neither will I. The single-subject issue by itself is more than this court can handle properly in the time available.

IV. Conclusion

Act in haste, repent at leisure. This court may well regret its precipitous decision in this case, and the unfortunate precedent it sets. Absent compelling circumstances requiring a preelection ruling—and such circumstances are absent here—a challenge to an initiative raising even moderately complex issues should not be decided before the election if doing so requires an expedited proceeding that sacrifices this court’s normal deliberative process.

My vote here is not a vote for or against the validity of Proposition 24. Neither is it a vote for or against the current test under which this court evaluates single-subject challenges. Although it may be argued that this court’s past decisions have been too lax in enforcing the single-subject rule (see Brosnahan v. Brown, supra, 32 Cal.3d 236, 262 (dis. opn. of Bird, C. J.); id. at p. 297 (dis. opn. of Mosk, J.)), a decision both revising the existing single-subject test and applying the revised test to this initiative would require even more study and deliberation than a decision under the existing test. To thoughtfully and carefully follow either path—applying the current test or devising and applying a new test—this court needs more time than it has had available to it in this case before the ballot preparation deadline.

My vote is a vote for careful judicial deliberation of complex issues of substantial importance to the people of this state. The prudent and correct course here is to defer decision on the validity of Proposition 24 until after the March 2000 election. Abandoning judicial restraint, the majority has sacrificed the prime judicial virtue of careful deliberation.

Brown, J., concurred.

*1177Appendix

Proposition 24

The Attorney General of California has prepared the following title and summary of the chief purposes and points of the proposed measure.

LEGISLATORS’ COMPENSATION, REAPPORTIONMENT, INITIATIVE CONSTITUTIONAL AMENDMENT.

Amends Constitution to reduce legislators’ salary to $75,000. Provides $75.00 per day maximum payment for legislators’ travel and living expenses, for up to 120 days, annually, while Legislature is in session. Allows Legislative adjustments to state officers’ salaries and benefits when approved by voters. Requires forfeiture of legislators’ compensation if budget not passed by June 15 of each year. Allows payment of forfeited compensation if Legislature passes and voters approve payment at next regular election. Provides for the state Supreme Court to reapportion legislative and Board of Equalization boundaries, subject to voters’ approval. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: The measure could result in annual savings to the state of several million dollars and unknown potential costs in the future. The net fiscal impact is unknown, but probably not significant in the context of the overall state budget.

Text of Initiative

SECTION 1. Title

This measure shall be known and may be cited as “Let The Voters Decide Act of 2000.”

SECTION 2. Findings and Declarations of Purpose

The People of the State of California find and declare that:

(a) Our Legislature should be responsive to the demands of the citizens of the state of California and not the self-interest of individual legislators. We demand that our representative system of government be fair to all, open to public scrutiny, free of conflicts of interest and dedicated to the principle that government derives its powers from the consent of the governed.

(b) Legislators should not be entitled to raise their own pay or draw their own districts without obtaining approval of the voters.

*1178(c) Therefore the voters enact reforms which include:

1) Salary Reform. The recent controversial pay raises must be repealed and the voters must approve any future increases;

2) No Pay if Budget is Late. Legislators should not be paid when they fail to pass a state budget on time;

3) Fair Reapportionment. Legislators must not have the unrestricted ability to draw the boundaries of their own legislative districts and the districts of our congressional representatives, offices to which they might aspire, for their own self-interest and the voters must have an opportunity to approve any redistricting plan adopted by the Legislature.

SECTION 3. Compensation of Legislators

Article III, Section 8, Subdivision (g) of the California Constitution is amended to read: •

(g) Beginning in the session immediately following the adoption of this Act, the annual salary of all Members of the Legislature shall be reduced to $75,000. On or before December 3, 1990, the commission shall, by- a smg-le-resehat-ion-adopted-by-amajor-it-y-of-the-membership-oLthe-commission, -establish the annual-salary and the medical,- dental,-insuraneeT-and other ámilar-benefits-of-st-ate-offieers-The-annual-salar-y-and-benefits specified in that resolution shall be effective on and after December 3, 1990.

Thereafter, at or before the end of each fiscal year, the commission, shall, by a single resolution adopted by a majority of the membership of the commission, may recommend to the Legislature an adjustment of adjust the annual salary and the medical, dental, insurance, and other similar benefits of state officers. The annual salary and benefits specified in the resolution shall be effective on and after the first Monday of the next- December if approved by a statute, passed by roll call vote entered into the journal, a majority of each house of the Legislature concurring and approved by the voters as a Legislative measure at the next regular election.

SECTION 4. Legislative Travel and Living Expenses.

Subdivision (b) of Section 4 of Article IV of the California Constitution is amended to read:

(b) Travel and living expenses for Members of the Legislature in connection with their official duties shall be prescribed by statute-passed-by *1179roll-eaH-vote entered in the journal, twojhirds of the membership of each house-eoneumngT not exceed $75 per day. A Member may not receive travel and living expenses during the times that the Legislature is in recess^ fee more than three-calendar~days-,-un-les-s-the Member is traveling-to-or from, or is in attendance- at, - any- meeti-ng-of-a committee of which--he-or- she is a memberror-a-meet-ing-,-conference, or other legislative funct-ion-e^-responsi bility as authorized- by- the-rules-of-the-house of which he or she is-a-member, which is-held-at-a- location-at—least- 20 miles from his or her-place of residene&T In no case, shall a Member receive travel and living expenses for more than 120 days per year. The amount paid for travel and living expenses may be increased if approved by a statute, passed by roll call vote entered into the journal, a majority of each house of the Legislature concurring and approved by the voters as a Legislative measure at the next regular election.

SECTION 5. Timely Budget

Subdivision (h) of section 12 of Article IV is added to read:

(h) Notwithstanding any other provision in this constitution, including Sections 4 and 8 of Article III and Sections 4 and 12(c) of this article, in any year in which the budget bill is not passed by the legislature by midnight on June 15, each Member of the Legislature shall forfeit any salary and reimbursement for travel or living expenses during any regular or special session for the period from midnight on June 15 until the day that the budget bill is presented to the Governor. No forfeited salary and travel and living expenses shall be paid retroactively. The amount forfeited can be approved for payment if approved by a statute, passed by roll call vote entered into the journal, a majority of each house of the Legislature concurring and approved by the voters as a Legislative measure at the next regular election.

SECTION 6. Fair Reapportionment

Article XXI of the California Constitution is amended'to read:

Section 1. In the year following the year in which the national census is taken under the direction of Congress at the beginning of each decade, the Legislature Supreme Court shall, adjust the boundary lines of the Senatorial, Assembly, Congressional, and Board of Equalization districts in conformance with the following standards:

(a) Each member of the Senate, Assembly, Congress, and the Board of Equalization shall be elected from a single member district.

(b) The population of all districts of a particular type shall be reasonably equal in compliance with Federal law.

*1180(c) Every district shall be contiguous and as compact as possible.

(d) Districts of each type shall be numbered consecutively commencing at the northern boundary of the state and ending at the southern boundary.

(e) The geographical integrity of any city, county, or city and county, or of any geographical region shall be respected to the extent possible without violating the requirements of any other subdivision of this section.

The Supreme Court shall appoint a panel of Special Masters made up of retired federal and state judges reflecting the cultural and ethnic diversity of California to hold public hearings to receive the presentation of evidence and argument from the public with respect to proposed plans of reapportionment.

Section 2. The reapportionment plans adopted by the Supreme Court shall be submitted to the voters for approval at the next regular election. The plans shall be used for all elections unless and until rejected by the voters.

SECTION 7. Severability

If any part of the measure or the application to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications which reasonably can be given effect without the invalid provision or application.