Johnson v. Bradley

MOSK, J., Concurring and Dissenting.

—For reasons that remain obscure to me, the majority have gone to the trouble of rendering an advisory opinion on the question whether a city charter provision conflicts with a state statute. The statute was part of a state initiative measure that has been declared essentially a “dead letter” on federal constitutional grounds by the Ninth Circuit Court of Appeals.

This is the second advisory opinion that has sprouted while we delayed recognizing the federal courts were in the process of striking down this initiative measure. (See Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 774 [274 Cal.Rptr. 787, 799 P.2d 1220] (conc. and dis. opn. of Mosk, J.).) As I will demonstrate, the portion of the measure remaining after the federal courts finished dining on it would not have appealed to the voters. The minor section relied upon by petitioners must be invalidated along with the crucial portion of the measure invalidated by the federal courts. The result is that there is no valid statute with which the city charter can possibly conflict.

I

First, the matter of the advisory opinion. Petitioners seek to invalidate a city charter provision for partial public funding of campaigns for city elective offices. They argue that the charter provision conflicts with a state statute regulating a matter of statewide concern, and must be invalidated as a matter of state constitutional law. The statute, Government Code section 85300, was enacted as part of Proposition 73 on the June 1988 ballot, a statewide initiative measure that imposed limitations on campaign contributions and banned public financing of election campaigns.1

Before we can reach the question whether the municipal affairs doctrine of the state Constitution permits the city to regulate election finance in a *415manner contrary to that provided by a statewide law, we normally would consider an important threshold matter. Is the statewide law valid? Is a severable portion of the initiative measure still state law? If not, the issue of the municipal affairs doctrine is moot and anything we say about it is an advisory opinion. This is the sequence of reasoning followed by the Court of Appeal.

Instead, the majority posit that because the city charter prevails both if the statewide law is invalid and under the municipal affairs doctrine, we should decide the municipal affairs question. They note also that the parties want us to decide the question, we granted review for that purpose, the briefing is good, and we have another vehicle for considering the validity of Proposition 73. (Maj. opn., ante, pp. 400-401.)

We do not decide moot issues unless they are of continuing public importance and are likely to recur. (O’Hare v. Superior Court (1987) 43 Cal.3d 86, 91, fn. 1 [233 Cal.Rptr. 332, 729 P.2d 766]; Daly v. Superior Court (1911) 19 Cal.3d 132, 141 [137 Cal.Rptr. 14, 560 P.2d 1193]; Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716 [106 Cal.Rptr. 21, 505 P.2d 213].) The question of conflict between municipal charters and section 85300 is not likely to recur—not even once. Section 85300 must be invalidated, so the question of conflict with it simply will not come up again.

The majority cite one case in which we reached a moot question of public import without meeting the requirement that the issue be likely to recur. (United Farm Workers of America v. Superior Court (1976) 16 Cal.3d 499, 503-504 [128 Cal.Rptr. 209, 546 P.2d 713] [hereafter United Farm Workers].) But we simply omitted explicit discussion of the requirement; the authority we cited for the proposition that a reviewing court may retain an otherwise moot case if it is of sufficient public importance did state the requirement that the issue be a recurring one. (Gordon v. Justice Court (1974) 12 Cal.3d 323, 326, fn. 1 [115 Cal.Rptr. 632, 525 P.2d 72, 71 A.L.R.3d 551].) Obviously, the issue before us in United Farm Workers, supra, 16 Cal.3d 499, that is, whether a class action will lie to restrain a labor union’s picketing activities, was likely to recur. To rely on United Farm Workers for the proposition that a moot issue may be decided though it is unlikely to recur would be to violate the axiom that cases are not authority for propositions not considered therein. (People v. Toro (1989) 47 Cal.3d 966, 978, fn. 7 [254 Cal.Rptr. 811, 766 P.2d 577]; People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [82 Cal.Rptr. 724, 462 P.2d 580].)

There is another reason that the majority err in taking on the municipal affairs issue in this case. “ ‘[W]e do not reach constitutional questions unless *416absolutely required to do so to dispose of the matter before us.’” (In re Michael G. (1988) 44 Cal.3d 283, 295 [243 Cal.Rptr. 224, 747 P.2d 1152], quoting People v. Williams (1976) 16 Cal.3d 663, 667 [128 Cal.Rptr. 888, 547 P.2d 1000]; see also Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1074 [2 Cal.Rptr.2d 160, 820 P.2d 262]; Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575, 586 [262 Cal.Rptr. 46, 778 P.2d 174]; People v. Marsh (1984) 36 Cal.3d 134, 144 [202 Cal.Rptr. 92, 679 P.2d 1033]; Palermo v. Stockton Theaters, Inc. (1948) 32 Cal.2d 53, 65-66 [195 P.2d 1]; and other authorities too numerous to mention.) The United States Supreme Court, too, observes restraints against “unnecessary constitutional decisions.” (Ellis v. Railway Clerks (1984) 466 U.S. 435, 444-445 [80 L.Ed.2d 428, 439-440, 104 S.Ct. 1883].) Not only are we not required to take on the constitutional question decided by the majority; in fact, the question is moot.

II

On the June 1988 General Election ballot there appeared Proposition 73, a measure that proposed to add a chapter containing four articles to the Government Code. Article 1 provided a number of definitions of terms and disclaimers, and a full title of the chapter, as follows: “Campaign Contribution Limits Without Taxpayer Financing Amendments to the Political Reform Act.” (§ 85100.) Article 2 provided for campaign contribution trust accounts, to be limited in amount as provided by article 3. (§ 85201.) It also provided that a candidate may accept contributions only from “persons, political committees, broad based political committees, and political parties” as defined in article 1. (§ 85202.) Article 3, the red meat of the proposition, prohibited the expenditure or acceptance of public funds for the purpose of seeking elective office. (§ 85300.) In proposed sections 85301 to 85303 it also established limits on campaign contributions of individuals, “political committees,” and “broad based political committees” during any fiscal year. In proposed section 85304 it prohibited transfers of funds between candidates. Proposed section 85305 applied fiscal year contribution limitations to special elections and special runoff elections. Article 4 limited honoraria, prohibited mass mailings at public expense, and supplied a severability clause.

The Ninth Circuit Court of Appeals has affirmed the decision of the federal district court invalidating the limitations imposed by Proposition 73 on campaign contributions. (Service Emp. Intern. v. Fair Political Prac. Com’n (9th Cir. 1992) 955 F.2d 1312, cert. den. _ U.S. _ [120 L.Ed.2d 922, 112 S.Ct. 3056].) Because the proposition limited contributions during any fiscal year, rather than, for example, during the election cycle, the *417contribution limits were unconstitutional “in the First Amendment context” because they invidiously discriminated in favor of incumbents and against challengers. (955 F.2d at pp. 1319-1321.) The court noted that the issue could be analyzed either under the First Amendment or the equal protection clause of the Fourteenth Amendment, with the same result. (955 F.2d at p. 1319, fn. 11.) The Court of Appeals also agreed with the district court that the fiscal year element of the campaign contribution limitations was not severable, despite a severability clause. The court explained that no reason had been provided to convince it that “ ‘the legislation would have been enacted if it had not included the unconstitutional provision.’ ” (955 F.2d at p. 1321.) An annual accounting would still be required even if the “fiscal year” language were stricken, and the court could not substitute other language without substantially rewriting the legislation. (Ibid.)

The reviewing court agreed that Proposition 73 also imposed an unconstitutional expenditure limitation because, in prohibiting inter- and intracandidate transfers of funds, it limited the purposes for which money raised by a candidate may be spent. “Expenditure limitations are subject to strict scrutiny and will be upheld only if they are ‘narrowly tailored to serve a compelling state interest.’ ” (Service Emp. Intern. v. Fair Political Prac. Com’n, supra, 955 F.2d at p. 1322.) The limitations imposed by Proposition 73 failed to survive strict scrutiny. Finally, the court agreed that the proposition’s limitation on the use of funds collected prior to its operative date could not survive the demise of the contribution limitation provisions of the enactment. (955 F.2d at p. 1323.)

Neither the district court nor the Court of Appeals was called upon to address the question whether the prohibition on the use of public funds contained in Proposition 73 was severable from the invalidated portions of the enactment. It is this provision, section 85300, that vexes us in this case.2

In CalFarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821 [258 Cal.Rptr. 161, 771 P.2d 1247], we explained that “[t]he cases prescribe three criteria for severability: the invalid provision must be grammatically, functionally and volitionally separable.” (Id. at pp. 821-822.) The first two criteria are met in this case; the only question concerns the last criterion. A Court of Appeal decision upon which we relied in CalFarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d 805, admirably defines the volitional element: “[T]he provisions to be severed must be so presented to the electorate in the initiative that their significance may be seen and independently evaluated in the light of the assigned purposes of the enactment. The test is whether it can *418be said with confidence that the electorate’s attention was sufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absence of the invalid portions.” (People’s Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 332-333 [226 Cal.Rptr. 640].)

Proposition 73 contains a severability clause.3 “ ‘Although not conclusive, a severability clause normally calls for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable. . . .’ . . . Such a clause plus the ability to mechanically sever the invalid part while normally allowing severability, does not conclusively dictate it. The final determination depends on whether ‘the remainder ... is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidity of the statute’ ... or ‘constitutes a completely operative expression of the legislative intent. . . [and is not] so connected with the rest of the statue as to be inseparable.’ ” (Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 331 [118 Cal.Rptr. 637, 530 P.2d 605], quoted with approval in CalFarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d at p. 821.)

Though I have no crystal ball, it is highly unlikely that the electorate would have enacted the ban on public financing in the absence of the campaign finance reform provisions invalidated by the federal courts. Thus, for instance, the title of the measure inextricably linked the two concepts, calling for “Campaign Contribution Limits Without Public Taxpaxer Financing.” (§ 85100, italics added.) Both articles 2 and 3 contain references to both elements, that is, to both limits on the amount of campaign contributions and to the restriction of the source of campaign contributions to the private sphere. (§§ 85202, 85300, 85301-85303.) Further, the ballot arguments link the two elements, promising—with capital letter emphasis—that “Proposition 73 will reform the way political campaigns are financed in California Without Giving Your Tax Money to Politicians!” and that the proposition “Accomplishes This Needed Reform of Campaign Financing Without Giving Your Hard-earned Tax Money to Politicians.” (Ballot Pamp., argument in favor of Prop. 73 as presented to the voters, Gen. Elec. (June 7, 1988) p. 34, emphasis and capitalization in original.)

In no way was the prohibition against public funding presented as an end in itself. In fact California had no public fiinding of elections at the statewide *419level, as the Legislative Analyst explained to the voters in connection with Proposition 73. (Ballot Pamp., supra, analysis of Prop. 73 by the Legislative Analyst, p. 32.) It would have been quite unnecessary, therefore, to entertain an independent purpose of prohibiting state financing of elections.

While portions of the argument of the proponents of Proposition 73 were devoted to persuading the voters, for example, that “Taxpayer Financing of Political Campaigns Makes No Sense” (Ballot Pamp., supra, argument in favor of Prop. 73, p. 34, capitalization in original), the argument was directed at a competing initiative, not at establishing the independent need for a ban on public financing. At the same election, the voters were offered Proposition 68, an initiative measure providing for campaign finance reform with partial public financing. The proponents of Proposition 73 offered their package of reform with no public financing as an alternative. Again, there is no indication at all that the prohibition against public financing was seen as an end in itself, even by the proponents of Proposition 73. Such an end would have been particularly pointless, as the state had no public financing of statewide elections—unless the rival reform package were to be enacted.

I acknowledge that the Court of Appeal in this case reached a different conclusion, finding the prohibition of public financing severable from the portions of Proposition 73 held invalid by the federal courts. The Court of Appeal turned to the other campaign finance reform measure on the June 1988 ballot, Proposition 68, which prevailed by a narrower margin than Proposition 73. Proposition 68 also contained campaign funding reform, but with spending limits, and as I have noted, some public funding. The Court of Appeal surmised that because fewer voters approved Proposition 68 than approved Proposition 73, the majority of voters were opposed to public funding of campaigns. The Court of Appeal concluded: “If any conclusion can confidently be drawn from the election which resulted in the approval of both . . . propositions, but with different majorities, it is that the voters wanted extensive campaign financing reform but that they did not want to do it with public money. We have no trouble concluding that had the voters known that some of Proposition 73’s contribution . . . limitations might be held invalid, they nonetheless would have supported the proscription on public financing.”

The voters may have wanted “extensive campaign finance reform,” but they are not going to get it from Proposition 73, as all the finance reform provisions have been invalidated by the federal courts.4 The question whether we can be confident that the voters would have wanted a prohibition *420against public funding, alone, without any campaign finance reform, remains unanswered in the Court of Appeal opinion. As I see the two elements as inextricably intertwined in the text of the proposition and the ballot arguments, I would hold section 85300 not severable.

That Proposition 73 was offered to the voters as a package deal, and not a smorgasbord, has already been confirmed by this court in another context. In Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com., supra, 51 Cal.3d 744, we refused to parse the terms of Propositions 73 and 68 to find an amalgam that we thought would have been palatable to the majority of voters. We were persuaded that Proposition 73 was intended as an all-or-nothing alternative to Proposition 68; a whole, and not a sum of parts. “We conclude that, unless a contrary intent is apparent in the ballot measures, when two or more measures are competing initiatives, either because they are expressly offered as ‘all-or-nothing’ alternatives or because each creates a comprehensive regulatory scheme related to the same subject, [the state Constitution] mandates that only the provisions of the measure receiving the highest number of affirmative votes be enforced.” (51 Cal.3d at p. 747.)

We clearly viewed Proposition 73 as a package offering in Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com., supra, 51 Cal.3d 744. To remain consistent with our position in that case, we should refuse to find the ban on public finance contained in Proposition 73 severable.

Ill

As section 85300 falls with the provisions invalidated by the federal courts, petitioners’ argument that the Los Angeles charter provision is invalid because it conflicts with section 85300 must fail. As I have said before in a similar context, “[a] dead horse cannot win a race.” (Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com., supra, 51 Cal.3d at p. 774 (conc. and dis. opn. of Mosk, J.).)

I would affirm the judgment of the Court of Appeal discharging the alternative writ, denying the peremptory writ of mandate, and dissolving the *421temporary stay, but for the reasons I have stated, and not for the reasons set forth in the majority opinion.

All statutory references are to the Government Code unless otherwise indicated.

Section 85300 provides: “No public officer shall expend and no candidate shall accept any public moneys for the purpose of seeking elective office.”

The clause provides: “If any provision of this act, or the application of any such provision to any person or circumstances shall be held invalid, the remainder of this act to the extent it can be given effect, or the application of those provisions to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby, and to this end the provisions of this act are severable." (Prop. 73, Gen. Elec. (June 7, 1988).)

The other provisions not reached by the federal courts limited honoraria for incumbents and eliminated free mass mailings by incumbents (previously permitted up until the time of *420filing to run for reelection). These are not directly related to campaign finance reform, but are more in the nature of limitations on the perquisites of office. Also not discussed were provisions dealing with the bank accounts in which funds were to be placed. These were not separate reforms, but a method of enforcing the contribution limits that have been declared unconstitutional. Further, the voters’ attention obviously was not focused on the accounting provisions as a separate reform; the accounting element of the proposition was not mentioned in the Attorney General’s summary, the Legislative Analyst’s analysis, or the arguments of the proponents or opponents.