American Federation of Labor-Congress of Industrial Organizations v. Eu

LUCAS, J.

I respectfully dissent. The majority, acting both precipitously and prematurely, has once again deprived the sovereign people of their precious initiative right. (See Legislature v. Deukmejian (1983) 34 Cal.3d 658 [194 Cal.Rptr. 781, 669 P.2d 17] [blocking vote on reapportionment initiative].) In my view, the majority errs in at least three separate respects, by (1) selecting this case for preelection review, contrary to the well-settled rule favoring the initial exercise of the people’s franchise, (2) misinterpreting the federal constitutional provision (U. S. Const., art. V) pertaining to the calling of a constitutional convention “on application of” the state Legislatures, and (3) strictly and narrowly construing the scope of the people’s reserved initiative power under California law, contrary to the rule in dozens of prior cases.

I. Preelection Review

The dissent of Justice Richardson in the foregoing reapportionment initiative case set forth the pertinent authorities which hold that, in the absence of a showing of “clear invalidity,” we should not interfere with a scheduled election on an initiative measure but, instead, we should defer our review until after the people have had the opportunity to express their views. (Legislature v. Deukmejian, supra, 34 Cal.3d at p. 681 [dis. opn.]; see Brosnahan v. Eu (1982) 31 Cal.3d 1, 4 [186 Cal.Rptr. 30, 651 P.2d 274].) Even “grave doubts” regarding the validity of an initiative do not require preelection review. (Gayle v. Hamm (1972) 25 Cal.App.3d 250, 256 [101 Cal.Rptr. 628].)

Our recent preelection review of the 1983 reapportionment initiative was “the first time in 35 years this court has removed from the ballot a qualified initiative measure, thereby preventing the people of California from voting on a subject of great importance to them . . . .” (34 Cal.3d at p. 681 [dis. opn.].) Today’s decision, filed less than one year later, reflects in my view a disturbing trend of this court to reach out and prematurely decide constitutional issues which might have been rendered entirely moot by the results *718of the forthcoming election, and which in any event readily could be addressed after the election has been held.

What reason does the majority offer for breaching, once again, the traditional rule of judicial restraint? The majority asserts that “The present proceeding . . . challenges the power of the people to adopt the proposed initiative,” supposedly a “proper ground” for preelection review. {Ante, p. 696.) Surely, the mere “challenge” to an initiative is not enough to trigger such expedited, accelerated review, for such a challenge could be made in every case. Instead, we must first satisfy ourselves that the initiative is clearly invalid, i.e., clearly beyond the people’s power to adopt. No such showing is made here.

As I will explain, the people indeed do have the power to direct the Legislature to apply to Congress for a constitutional convention. But even were grave doubts presented regarding the initiative’s validity, there are good reasons for deferring our review until after the people have expressed their views and voted upon the measure. As real parties herein point out in one of their briefs, “Participation in the electoral process and ongoing public debate on this important issue will benefit the citizenry and their elected representatives. It will allow citizens to exercise their first amendment rights to express their opinions.” The majority’s ruling unfortunately terminates abruptly any widespread public debate by California citizens regarding a matter so crucial to their own, and their nation’s, financial well being. Might not the Legislature, the Congress and the voters each have welcomed a public airing of this important issue?

In addition, I question the propriety or necessity of the “rush to judgment” exhibited in this case, resulting from the majority’s attempt to file its decision before impending election deadlines. Most of the briefing in this case was completed only a few days prior to oral argument; we filed today’s opinion only a few days after hearing that argument. How can this court, already swamped with hundreds of pending cases, expect to reach a reasoned determination of the complex issues presented herein under such adverse circumstances?

Finally, several well respected amici (former Attorney General Griffin Bell, former Senator Sam Ervin, and Professor John Noonan) have raised an additional argument against preelection (or indeed any) judicial review which strikes me as quite persuasive: A court, and especially a state court, should not pass upon the essentially political question regarding the validity of an application for a constitutional convention pursuant to article V of the federal Constitution. (See Coleman v. Miller (1939) 307 U.S. 433 [83 L.Ed. 1385, 59 S.Ct. 972, 122 A.L.R. 695] [plurality opn., declining review of *719validity of state ratification of constitutional amendment].) Instead, we should defer to Congress, the body alone entrusted by the federal Constitution with the responsibility to receive and review such applications. As I indicate in the following part of this opinion, it is quite likely that Congress would conclude that the application is constitutionally valid. What possible harm could result from our deferring to Congress regarding this federal question?

II. Validity Under Federal Law—The Convention Clause

Article V of the federal Constitution in pertinent part provides that Congress “on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments” to the Constitution. (Italics added.) Such proposed amendments “shall be valid . . . when ratified by the Legislatures of three-fourths of the several States, or by conventions in three-fourths thereof . . . .” Contrary to the majority herein, the challenged initiative measure is not in conflict with the foregoing constitutional provision. The initiative simply directs the Legislature to file the requisite application so that California may be counted as supporting the calling of a constitutional convention. Where is the “clear invalidity” under federal law in that procedure?

Thus, section one, subdivision (a), of the challenged initiative measure recites that “The People of the State of California hereby mandate that the California Legislature adopt the following resolution and submit the same to the Congress . . . .” The resolution which follows urges Congress to propose a balanced budget amendment to the federal Constitution and makes “application” to Congress for the calling of a constitutional convention to consider such an amendment. Assuming that, under California law, the initiative process may be used for this purpose (a subject I discuss in part III hereof), what basis exists for holding that the measure contravenes the federal constitutional requirements of article V? That article requires an “application” from the Legislature; the challenged measure is designed to provide such an application.

This is not a case where the voters are attempting to abrogate prior completed legislative action. (E.g., Hawke v. Smith (1920) 253 U.S. 221, 227-230 [64 L.Ed. 871, 875-876, 40 S.Ct. 495, 10 A.L.R. 1504]; Barlotti v. Lyons (1920) 182 Cal. 575, 578-584 [189 P. 282].) In both Hawke and Barlotti, the state Legislatures had already ratified the 18th Amendment (“prohibition”) by joint resolution. Nevertheless, referendum petitions were thereafter circulated for the purpose of submitting the question to the voters for their approval or rejection. Both courts quite properly held that, under article V of the federal Constitution, the term “Legislature” refers *720only to the official representative body or bodies of the various states, rather than to the legislative power itself, as exercised through the referendum. Accordingly, the filing of the joint legislative resolutions exhausted the ratification process. As stated in Hawke, ratification “is but the expression of the assent of the state to a proposed amendment. ” (P. 229 [64 L.Ed. at p. 876].) Because article V mandated that such assent be expressed by the “Legislature,” the referendum process was deemed inapplicable and incapable of abrogating the prior expression of legislative will.

In the present case, in contrast to Hawke and Barlotti, no attempt is made to “undo” any prior, completed legislative act which already had triggered a federal constitutional process such as calling a convention or ratifying a proposed amendment. Instead, here the initiative process is being used to assure that such an act finally is undertaken by our Legislature. Article V does not purport to prohibit the use of the initiative process as one means of inducing a state legislature to act. Indeed, as the foregoing cases make clear, the sole concern of article V is that the request for a convention call take the form of an application by a state legislature. As previously discussed, that concern is satisfied here.

III. Validity Under California Law—The Initiative Process

Is an initiative measure which directs the state Legislature to apply for a constitutional convention “clearly invalid” under California law? Clearly not. Before confronting that issue, however, we should first review certain fundamental principles which control our disposition. First and foremost, “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” (Cal. Const., art. II, § 1.) A corollary to this is that “the legislative power of this State is vested in the California Legislature . . ., but the people reserve to themselves the powers of initiative and referendum. ” (Id., art. IV, § 1, italics added.) Finally, “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” (Id., art. II, § 8, subd. (a).)

The majority would apply a narrow construction of the scope of the initiative power under the California Constitution. In the majority’s view, directing the Legislature to apply for a constitutional convention involves neither a “statute” nor an “amendment” to the state Constitution. But use of such a narrow construction of the people’s initiative right is directly contrary to the teachings of prior decisions of this court which require a liberal construction favoring the exercise of the initiative power.

*721Justice Tobriner set forth the applicable principles as follows: “The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900’s. Drafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them. Declaring it ‘the duty of the courts to jealously guard this right of the people’ (Martin v. Smith (1959) 176 Cal.App.2d 115, 117 [1 Cal.Rptr. 307]), the courts have described the initiative and referendum as articulating ‘one of the most precious rights of our democratic process’ (Mervynne v. Acker [1961] 189 Cal.App.2d 558, 563 [11 Cal.Rptr. 340]). ‘[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it. ’ (Mervynne v. Acker, supra, 189 Cal.App.2d 558, 563-564; Gayle v. Hamm, supra, 25 Cal.App.3d 250, 258.)” (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591 [135 Cal.Rptr. 41, 557 P.2d 473, 92 A.L.R.3d 1038], italics added, fns. omitted.)

Since Associated Home Builders, we have often followed these admonitions regarding this constitutional right. (See, e.g., Brosnahan v. Brown (1982) 32 Cal.3d 236, 241 [186 Cal.Rptr. 30, 651 P.2d 274] [upholding the “Victims’ Bill of Rights” initiative]; Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 41 [157 Cal.Rptr. 855, 599 P.2d 46] [upholding, in most respects, the Political Reform Act of 1974]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219-220, 248 [149 Cal.Rptr. 239, 583 P.2d 1281] [upholding the Jarvis-Gann property tax initiative]; see also Legislature, supra, 34 Cal.3d 658, 683 [dis. opn.].)

Under a liberal construction of the “precious” and reserved initiative power, the people clearly would have authority to direct their own representatives in the state Legislature to apply for a constitutional convention. Such an initiative measure reasonably could be deemed a proposal for the adoption of a “statute.”

There is no fixed, immutable definition of the term “statute.” The term could refer to any formal, written exercise of legislative power, whether or not codified and placed within the California codes. The Code of Civil Procedure defines “statute” as any “written law” other than a constitution. (§ 1897; see also former Cal. Const., art. IV, § 1 [initiative is the power to propose “laws”].) The people’s written directive to the Legislature, mandating it to apply for a constitutional convention, certainly would qualify as *722a written law, i.e., a statute. Under this interpretation, we do not need to reach the further issue troubling the majority, namely, whether a legislative resolution applying for a constitutional convention is a statute. The statute involved here is the one enacted by the people, directing the Legislature to submit that application.

For example, a recent initiative measure in part required the Legislature to adopt provisions implementing the right of crime victims to monetary restitution. (Prop. 8, adopted at the June 1982 Primary Election, now art. I, § 28, subd. (b).) Is not this procedural mandate from the people to the Legislature a “written law”? If so, then in what respects does the initiative measure before us fail to qualify as proposing such a law? Would it have made any difference if our measure had recited that its text would be formally incorporated into a new section of the Government Code? Surely such formalism cannot prevail over the people’s right to be heard on matters of grave importance to them. Indeed, our prior cases require us to resolve all doubts in favor of the exercise of the initiative power, especially where the subject matter of the measure is of public interest and concern. (See Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 330 [118 Cal.Rptr. 637, 530 P.2d 605] [state initiative measure declaring state policy on forced busing]; Farley v. Healey (1967) 67 Cal.2d 325, 328-329 [62 Cal.Rptr. 26, 431 P.2d 650] [local initiative measure adopting policy favoring immediate ceasefire and withdrawal from Vietnam].) As stated in the Santa Barbara case, “The people of California through the initiative process, have the power to declare state policy.” (P. 330.) Surely, then, they have the power to direct the Legislature, as their representative, to declare such policy on their behalf.

We should bear in mind that, unlike the limited referendum power, the initiative is not confined by any state constitutional restrictions upon its scope or use. (See Cal. Const., art. II, §§ 8, 9; Carlson v. Cory (1983) 139 Cal.App.3d 724, 728 [189 Cal.Rptr. 185] [repeal of state inheritance and gift taxes].) As Carlson observes, “there is nothing in our state Constitution which prohibits the use of the statutory initiative to repeal tax laws.” (P. 731.) Similarly, nothing in the state Constitution forbids use of the initiative to direct the Legislature to apply for a constitutional convention.

In a case upholding the validity of another statewide initiative measure (Prop. 13, adopted June 6, 1978, now Cal. Const., art. XIII A), we acknowledged that the initiative may be viewed as a “' legislative battering ram’ ” aimed at “ ‘tear[ing] through the exasperating tangle of the traditional legislative procedure and striking] directly toward the desired end.’ [Citation.]” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d 208, 228.) Given the numerous rejected or aban*723doned bills aimed at accomplishing the end sought by the initiative measure challenged in this case, the foregoing description seems unusually apt. As in Amador Valley, “Although we express neither approval nor disapproval of the [measure] from the standpoint of sound fiscal or social policy” (p. 229), we should uphold it in recognition of the constitutional principle that “All political power is inherent in the people.” (Cal. Const., art. II, § 1.) Liberally construed, the initiative power applies here.

IV. Severability

Time constraints do not permit me to explore at length the validity of those additional provisions of the challenged initiative which impose financial sanctions upon the Legislature in the event of its noncompliance, and which requires the Secretary of State to act in lieu of the Legislature should it fail to adopt the resolution within 40 days of voter approval. Suffice it to say that these provisions are entirely severable from, and do not affect the validity of, the provision directing the Legislature to apply for a constitur tional convention. (See In re Blaney (1947) 30 Cal.2d 643, 655 [184 P.2d 892].)

Indeed, each separate section of the initiative measure is made “severable” by the terms of the measure itself, and if any section or subdivision is held invalid, “the remainder of the initiative . . . shall not be affected thereby.” I see no reason why the initiative may not be given effect, at least to the extent it directs the Legislature to apply for a constitutional convention. The distinct and severable questions of proper sanctions or alternative procedures in the event of noncompliance may be decided another day.

For all the foregoing reasons, I would deny the peremptory writ of mandate.

On October 25, 1983, the judgment was modified to read as printed above.