Kopp v. Fair Political Practices Commission

MOSK, J.

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

I write separately to explain why I join in the disposition.

In Nongues v. Douglass (1857) 7 Cal. 65, which was decided in the early days of statehood but remains vital today (see Raven v. Deuhnejian (1990) 52 Cal.3d 336, 354 [276 Cal.Rptr. 326, 801 P.2d 1077]), we set out the doctrine of separation of powers under the California Constitution.1

“The . . . powers of the State reside primarily in the people; and they, by our Constitution, have delegated all their own powers to the three departments—legislative, executive, and judicial—except in those cases where *672they have themselves exercised these powers, or expressly, or by necessary implication, reserved the same to themselves”—as in initiative and referendum—“to be exercised in the future. So far, then, as the people have exercised the legislative powers of government in the formation of the Constitution of the State, their action is conclusive upon all the departments. But in all cases where not exercised and not reserved, all the legislative power of the people of the State is vested in the Legislature, and all the executive power in the executive department, and all the judicial power in the judiciary.

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

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

The principal focus of this proceeding is, of course, the judicial power under the California Constitution. The subsidiary object is the legislative power—whether exercised by the Legislature itself or by the people acting through initiative or referendum. When, in “expounding” the law, the courts undertake to construe a statute, they “ask only what the statute means.” (Holmes, Collected Legal Papers (1920) p. 207.) And when they consider that question, they ask only what its words mean. For a statute, as it were, is a complete integration. Within its scope, it is the final and exclusive statement by the legislative body of its intent, superseding all prior and contemporaneous expressions and implications, not only those that are directly contrary but even those that are altogether consistent. Perhaps more accurately, it is the legislative body’s final and exclusive enactment, displacing all terms and conditions of whatever sort that could, would, or might have *673been passed. To seek the meaning of a statute is not simply to look up dictionary definitions and then stitch together the results. Rather, it is to discern the sense of the statute, and therefore its words, in the legal and broader culture. Obviously, a statute has no meaning apart from its words. Similarly, its words have no meaning apart from the world in which they are spoken. (Cf. Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37 [69 Cal.Rptr. 561, 442 P.2d 641] [rejecting the “primitive faith in the inherent potency and inherent meaning of words” (fns. omitted)].)

Under the California Constitution, therefore, the courts have no general authority by virtue of the judicial power to rewrite a statute, even to salvage its validity. Rewriting would amount to amendment. (See, e.g., Huening v. Eu (1991) 231 Cal.App.3d 766, 111 [282 Cal.Rptr. 664].) Amendment is within the power of the legislative body. It is beyond that of the courts. “If the law is” in need of “alteration,” “it ought to be changed; but the power for that is not with us.” (Minor v. Happersett (1874) 88 U.S. (21 Wall.) 162, 178 [22 L.Ed. 627, 631] (per Waite, C. J.).) “The judges have no option in the matter. They are bound, hand and foot, by the shackles of [the] statute.” (Cardozo, Law and Literature (1931) p. 106.) Their “province” is “to expound the law, not to make it.” (Luther v. Borden et al. (1849) 48 U.S. (7 How.) 1, 41 [12 L.Ed. 581, 598-599] (per Taney, C. J.).) Their authority “is only a negative—never an affirmative—force. It cannot create, it cannot initiate, it cannot put into action any governmental policy of any kind .... All [they] can do is to say Yes or No to a policy or program or a part of a policy or program that has been started by someone else in some other branch of government”—such as the legislative body. (Rodell, Nine Men (1955) p. 11.) In this area, “[a]ll they can do is to approve or disapprove— after they are asked to do so—a law passed by” that body. (Ibid.)2

Plainly, if the 7 members of this court had general authority to rewrite a statute—as the dissenters evidently believe in their remarkable, and uncabinable, display of judicial activism—so too would the state’s 88 Court of *674Appeal justices, 789 superior court judges (together with their 140 commissioners and referees), 623 municipal court judges (together with their 170 commissioners and referees), and 47 justice court judges (Judicial Council of Cal., Ann. Rep. (1994) p. xiii [stating the total number of authorized judicial positions as of June 30, 1993]). The enactment of a statute would not be the end of the legislative process but only the beginning; it would not render order but only invite chaos. Such an outcome would be intolerable. Indeed, in no opinion have we purported to alter a statute. Rather, we have consistently maintained the obvious and significant distinction between interpreting a measure and making changes in its words.3

With that said, it is plain that, in any given statute, the courts may be specifically authorized by the legislative body to make deletions along and within the measure’s general lines pursuant to an express severability clause (see, e.g., In re Blaney (1947) 30 Cal.2d 643, 654-655 [184 P.2d 892]), or even an implied provision to similar effect (see, e.g., Legislature v. Eu (1991) 54 Cal.3d 492, 535 [286 Cal.Rptr. 283, 816 P.2d 1309]).

Likewise, it seems clear that, in any given statute, the courts may be specifically authorized by the legislative body to make additions, also along and within the measure’s general lines, pursuant to what might be called an express “attachability clause,” or even an implied provision to similar effect. (See Minn. Stat. § 144.343, subd. (6) (1994) [legislative authorization in an abortion notification statute for the courts to add certain “[substitute notification provisions” allowing judicial bypass if, and so long as, the original notification provisions not encompassing judicial bypass are “ever temporarily or permanently restrained or enjoined by judicial order”].) That is the core, and sound, teaching of Justice Harlan’s concurring opinion in Welsh v. United States (1970) 398 U.S. 333 [26 L.Ed.2d 308, 90 S.Ct. 1792]. Just as the legislative body may make a “grant of power to the courts,” actual or “presumed,” to permit them to perform an “amputation” on a statute, it may do the same to allow them to effect a “graft.” (Id. at pp. 355, 364 [26 L.Ed.2d at pp. 327, 332-333] (conc. opn. of Harlan, J.).)4

Turning now to Proposition 73, I am convinced that we have no general authority by virtue of our judicial power under the California Constitution to *675rewrite the statute, even to salvage its validity. I am also convinced that we have not been specifically authorized by the people to alter the measure in any of the ways requested or suggested. On their very face, all of the various additions and deletions are in conflict with or go beyond its general lines. The lead opinion demonstrates the fact. I embrace its analysis in this regard.

In conclusion, because I am of the view that we are without authority to alter Proposition 73 in any of the ways requested or suggested, I concur in the judgment.

The California Constitution declares that the “powers of State government are legislative, executive, and judicial” (Cal. Const., art. Ill, § 3); the “legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the *672people reserve to themselves the powers of initiative and referendum” (id.., art. IV, § 1); the “supreme executive power of this State is vested in the Governor” (id., art. V, § 1); the “judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, and municipal courts” (id., art. VI, § 1); and, generally, “[p]ersons charged with the exercise of one power may not exercise either of the others” (id., art. Ill, § 3).

It follows a fortiori that, under the California Constitution, the courts have no general obligation to alter a statute. Certainly, they have not been made subservient to the legislative body, as a valet to his master. They must themselves construe the statute under review. If they find it valid, they must so declare. If they find it invalid, they must so declare. They need not, and indeed must not, alter it in order to spare the legislative body the chore of amendment.

In an article entitled Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation (1979) 28 Clev. St. L.Rev. 301, then Judge, now Justice, Ginsburg seems to agree that the courts do not have general authority to alter a statute. But she accepts some “judicial legislation” as legitimate apparently because she deems it necessary. It is not. Moreover, she rejects what she evidently considers the “ ‘wooden notion that each branch must “be limited to the exercise of the powers appropriate to its own department and no other.” ’ ” (Id. at p. 324.) We may not.

By way of example: assume a statute that requires the filing of certain documents by 5 o’clock. We could reasonably interpret the measure to mean 5 o’clock in the afternoon. We could not, however, change the words “5 o’clock” to “6 o’clock.”

I note in passing that, at one point in his concurring opinion in Welsh, Justice Harlan stated: “Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion. Cf. Skinner v. Oklahoma, 316 U.S. 535 [86 L.Ed. 1655, 62 S.Ct. 1110] (1942); Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239 [76 L.Ed. 265, 52 S.Ct. 133] (1931).” (Welsh v. United States, supra, 398 U.S. at p. 361 [26 L.Ed.2d at p. 331], italics added (conc. opn. of Harlan, J.).) The italicized “remedial *675alternative” may indeed exist if the statute in question has an “attachability clause.” But not otherwise. Neither Skinner nor Iowa-Des Moines National Bank is to the contrary.