Huening v. March Fong Eu

RAYE, J., Concurring and Dissenting.

I concur with the result reached by the majority. However, I am not persuaded by the majority’s rationale, viz.: that Elections Code section 3654.1 is an invalid amendment to the Political Reform Act of 1974 (Political Reform Act) because it was not enacted in compliance with Government Code section 81012.

The majority correctly observes that “[t]he Political Reform Act covers a wide variety of topics relating to elections.” Clearly, not every effort to legislate on these “wide variety of topics” would constitute an “amendment” to the act within the meaning of section Government Code 81012.1 or the underlying provision of the California Constitution, article II, section 10.1

Prior to passage of the Political Reform Act, the Legislature had enacted a body of statutes governing ballot arguments. (See generally Elec. Code, § 3559 et seq.) While the Political Reform Act added provisions to the Government Code relating to the statewide ballot pamphlet, the provisions could fairly be characterized as innocuous. Requirements were *781added regarding the placement of arguments and the printing of the pamphlet. (Gov. Code, §§ 88000-88007.) No effort was undertaken to prescribe a process by which ballot arguments were to be placed in the ballot pamphlet. Existing Elections Code provisions were largely unaffected, and section 88006 of the act required the ballot pamphlet to comport with the Elections Code. (Gov. Code, § 88006.) Given this history of legislative action, and the relatively mundane quality of changes affecting ballot arguments contained in the Political Reform Act, it is unreasonable to impose the extraordinary vote requirements of Government Code section 81012.1 on all legislative action affecting ballot arguments.2

Restrictions on the authority of the Legislature to amend initiative measures are necessary and proper. They protect the people’s initiative powers by precluding the Legislature from undoing what the people have done, without the electorate’s consent. However, the Constitution does not restrict the Legislature and the Governor from enacting legislation which is neither in conflict with the language of an initiative measure nor destructive of the initiative’s purpose.

The majority opinion implies that even legislation advancing the goals of political reform would require a two-thirds majority, as would efforts by the Legislature to clarity ambiguities in the measure. Granted, the term “amendment” has been so defined in other contexts; however, the application of such a strict definition to the interpretation of section 81012 or the Constitution is neither compelled nor warranted.

While the Legislature’s enactment of Elections Code section 3564.1 by majority vote did not in my view offend section 81012 or California Constitution article II, the provision is nonetheless invalid. Both the appellant and respondent assert that section 3564.1 violates the First Amendment to the federal Constitution. I concur.

The ballot pamphlet is a “limited public forum.” (Kaplan v. County of Los Angeles (9th Cir. 1990) 894 F.2d 1076; Gebert v. Patterson (1986) 186 Cal.App.3d 868 [231 Cal.Rptr. 150].) “[0]nce the government creates the forum, ‘it is bound by the same standards as apply in a traditional public form. Reasonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.’ [Citations.]” (Kaplan v. County of Los Angeles, supra, 894 *782F.2d at p. 1080.) Elections Code section 3564.1 imposes a content-based restriction on speech. It subjects the publication of truthful and pertinent information about a measure’s supporters and opponents to the unrestrained veto authority of those most likely to oppose the dissemination of such information.

The Secretary of State cannot discern a compelling state interest to support such a restriction. I am also confounded. Accordingly, I would conclude that Elections Code section 3564.1 is unconstitutional.

The Legislature’s authority to amend initiative measures is limited by article II, section 10, of the California Constitution which provides in pertinent part: “(c) The Legislature may amend or repeal referendum statutes. It 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.” The present dispute concerns language in the Political Reform Act which permits legislative amendment of the act by two-thirds vote. Absent such language, any legislative measure deemed to “amend” the Political Reform Act would not be effective until approved by the voters.

It is also significant that article II, section 10 of the California Constitution provides that: “(e) The Legislature shall provide the manner in which petitions shall be circulated, presented and certified, and measures submitted to the electors.” Restrictions on legislative authority in this area should be strictly construed.