HOWARD JARVIS TAXPAYERS ASSN. v. BOWEN No. C060441.
192 Cal.App.4th 110 (2011)
HOWARD JARVIS TAXPAYERS ASSOCIATION et al., Plaintiffs and Appellants, v. DEBRA BOWEN, as Secretary of State, etc., Defendant and Respondent; GEOFF BRANDT, as State Printer, etc., et al., Real Parties in Interest and Respondents.
Court of Appeals of California, Third District.
January 27, 2011.
Trevor A. Grimm, Jonathan M. Coupal and Timothy A. Bittle for Plaintiffs and Appellants.
David L. Lewellyn, Jr., as Amicus Curiae on behalf of Plaintiffs and Appellants.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Jonathan K. Renner, Assistant Attorney General, Stephen P. Acquisto and Ross C. Moody, Deputy Attorneys General, for Defendant and Respondent and for Real Parties in Interest and Respondents Geoff Brandt, State Printer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General.
Diane F. Boyer-Vine, Robert A. Pratt and Marian M. Johnston for Real Party in Interest and Respondent California State Legislature.
California voters have a powerful tool, the ballot initiative, to make public policy. (Cal. Const., art. II, § 8, subd. (a) ["The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them."], art. IV, § 1 ["The legislative power of this State is vested in the California Legislature ... but the people reserve to themselves the powers of initiative and referendum."].)
Indeed, it was by a ballot initiative, Proposition 9, that voters adopted the Political Reform Act of 1974 (Gov. Code, § 81000 et seq.; Political Reform Act or Act) to address, among other things, potential abuse of the very process by which voters adopted Proposition 9. (Gov. Code, § 81000 et seq.; further section references are to the Government Code unless otherwise specified.)
To this end, the Political Reform Act's section 88002 requires that, for "each state measure to be voted upon," the ballot pamphlet must contain certain information, including a ballot "title" (§ 88002, subd. (a)(1)) and an "official summary prepared by the Attorney General" (§ 88002, subd. (a)(2)).
In this case, we deal not with an initiative measure, but with another "state measure" that must be approved by voters, namely, a "measure [passed by the
The question posed is whether, in enacting the "Safe, Reliable, High-Speed Passenger Train Bond Act for the 21st Century" to submit the measure to voters as Proposition 1A at the November 4, 2008 General Election, the Legislature acted lawfully when it specified the ballot label, title and summary to be used and precluded the Attorney General from revising the language other than to include a financial impact statement. (Stats. 2008, ch. 267, § 11, subd. (f)(1) & (2).)
The answer is "No." The Political Reform Act may be amended in two ways: (1) "to further its purposes" if the amendment is passed in each house of the Legislature by a two-thirds vote (Gov. Code, § 81012, subd. (a)); or (2) by the enactment of a statute that is then approved by the electorate (Gov. Code, § 81012, subd. (b)). The Legislature passed the "Safe, Reliable High-Speed Passenger Train Bond Act for the 21st Century" by a two-thirds vote of each house. However, to the extent it specified the ballot label, title and summary to be used, the bill negated the Political Reform Act's requirement that the official summary of the bill be prepared by the Attorney General in addition to the ballot label and title that are prepared by the Attorney General. As we will explain, this ad hoc amendment of the Political Reform Act did not further the purposes of the Act and was not approved by the voters. Thus, it was invalid. Simply stated, the Legislature cannot dictate the ballot label, title and official summary for a statewide measure unless the Legislature obtains approval of the electorate to do so prior to placement of the measure on the ballot.
Assembly Bill No. 3034 (2007-2008 Reg. Sess.), the "Safe, Reliable High-Speed Passenger Train Bond Act for the 21st Century" (Stats. 2008, ch. 267, § 9 (hereafter "High-Speed Train Bond Act")), provided for the issuance of $9.95 billion of general obligation bonds, $9 billion of which would be available, along with any available federal and private funds, for the planning and construction of a high-speed train system to connect California's major metropolitan areas, and $950 million of which would be available for capital projects on other passenger rail lines connecting to the
The Legislature placed the measure on the November 4, 2008 General Election ballot (Stats. 2008, ch. 267, §§ 10, 11) "notwithstanding the requirements of Sections 9040 [(which states a bond measure `shall appear on the ballot of the first statewide election occurring at least 131 days after the adoption of the proposal by the Legislature' (italics added))], 9043 [(time for submission of arguments prepared by legislators)], 9044 [(time for submission of arguments by voters)], and 9061 [(time for mailing press release)] of the Elections Code or any other provision of law." (Stats. 2008, ch. 267, § 11, subd. (a).) The Legislature also specified that, "[n]otwithstanding Sections 13115 and 13117 of the Elections Code [(specifying the order in which measures will appear on the ballot)]," the High-Speed Train Bond Act "shall be placed as the first ballot measure ... and shall be designated as Proposition 1A." (Stats. 2008, ch. 267, § 11, subd. (b).)
In addition, the Legislature required that, "[n]otwithstanding any other provision of law, all ballots of the November 4, 2008, general election shall have printed thereon as the ballot label for Proposition 1A the following: "`SAFE, RELIABLE HIGH-SPEED PASSENGER TRAIN BOND ACT. To provide Californians a safe, convenient, affordable, and reliable alternative to driving and high gas prices; to provide good-paying jobs and improve California's economy while reducing air pollution, global warming greenhouse gases, and our dependence on foreign oil, shall $9.95 billion in bonds be issued to establish a clean, efficient high-speed train service linking Southern California, the Sacramento/San Joaquin Valley, and the San Francisco Bay Area, with at least 90 percent of bond funds spent for specific projects, with federal and private matching funds required, and all bond funds subject to independent audits?'" (Stats. 2008, ch. 267, § 11, subd. (c).)
The Legislature also specified that, "[n]otwithstanding any other provision of law, the Secretary of State shall use the following as the ballot title and summary for Proposition 1A: "`SAFE, RELIABLE HIGH-SPEED PASSENGER TRAIN BOND ACT. [¶] Provides long-distance commuters with a safe, convenient, affordable, and reliable alternative to driving and high gas prices.
And the Legislature required that, "[n]otwithstanding Sections 13247 [(limitation on total number of words in the ballot statement, and title, and financial impact summary)] and 13281 of the Elections Code [(former statute specifying the Attorney General shall prepare the ballot label and title)]" or "any other provision of law," the above quoted ballot title and summary "shall be the only language" included on the ballot as the ballot label, title and summary for Proposition 1A, and "the Attorney General shall not supplement, subtract from, or otherwise revise that language," except for providing a financial impact summary. (Stats. 2008, ch. 267, § 11, subds. (d) & (f)(2).)
Prior to the 2008 general election, the Howard Jarvis Taxpayers Association and taxpayer Kris Vosburgh (appellants) petitioned the superior court for a writ of mandate directing the Secretary of State to "request an impartial Ballot Label, Title and Summary from the Attorney General, and to use them in lieu of the Ballot Label, Title and Summary furnished by the Legislature."
Appellants asserted that the Legislature violated article II, section 4 of California's Constitution by "attempting to influence the election with its own one-sided Ballot Label, Title, and Summary." According to appellants, "the Legislature, as author and proponent of Proposition 1A, has a conflict of interest in preparing an impartial Ballot Label, Title, and Summary," and "the Label, Title, and Summary it prepared for Proposition 1A are, in fact, not impartial," but rather "resemble campaign literature, containing nonfactual opinion and statements that are false or misleading."
Opposing the petition, the Legislature, as real party in interest, argued that "the authority to designate the author of the ballot materials of a measure placed by the Legislature before the voters rests with the Legislature, and the Legislature's assignment of this responsibility to itself was completely within its discretion." It further asserted that the specific statements sought to be stricken were neither false nor misleading, and thus should not be deleted from the ballot materials.
Saying it "declines to read into the Constitution's general terms a specific requirement that Legislature-drafted ballot information must be totally impartial," the superior court rejected the request to order the Secretary of State to obtain substitute ballot materials from the Attorney General. But the court ordered that the ballot summary of Proposition 1A be modified to state: "Provides that at least 90% of these bond funds shall be spent for specific construction projects, with private and public matching funds required, including, but not limited to, federal funds, funds from revenue bonds, and local funds." (Italics indicate modification.) A similar modification was ordered to the ballot label of Proposition 1A.
Proposition 1A passed by a slim margin on election day. (See Statement of Vote (Nov. 4, 2008) Gen. Elec. <http://www.sos.ca.gov/elections/sov/2008_general/sov_complete.pdf> [as of Jan. 27, 2011].)
We begin our analysis by rejecting the Legislature's contention that this appeal should be dismissed as moot because "the election is over, and the bond measure has been approved by the voters."
Appellants acknowledge that they "are not asking to have the election invalidated or issuance of the bond enjoined." Rather, they "simply want this Court to determine whether the Superior Court erred by not issuing a writ directing the Legislature, in light of its conflict of interest, to have the Attorney General or another disinterested party write the impartial materials for the voters."
As appellants correctly point out, this appeal challenges a practice that has been used by the Legislature with increasing frequency in recent elections
Appellants raise a constitutional challenge premised on their claim that the Legislature had a conflict of interest and did not act impartially when it dictated the ballot label, title and summary of the bond act that it had championed.
We need not decide the merits of this constitutional challenge because, for reasons that follow, appellants prevail on another ground. (See Santa Clara County Local Transportation Authority v. Guardino (1995)
The Legislature commendably raises the issue whether its action ran afoul of the Political Reform Act, which provides, among other things, that, for "each state measure to be voted upon," the ballot must contain "[t]he official summary prepared by the Attorney General." (§ 88002, subd. (a)(2).)
It concedes that, "[i]f this reference is construed as a mandate in the [Political Reform Act] that only the Attorney General may prepare the ballot summary, then [the provision of the High-Speed Train Bond Act at issue in this appeal], and any other statute that instead gives this responsibility to anyone other than the Attorney General, amends the [Political Reform Act] and must follow the requirements for amending the [Act] to be valid."
The Legislature contends, however, that it did not amend the Political Reform Act because "[n]othing in the [Act] prevents the Legislature from specifying, by statute, who is to draft the ballot label and the ballot title and
Appellants counter that Government Code section 88002 means what it says, and the only way the Legislature can take over the task of preparing a ballot label, title and summary on an ad hoc basis is to amend the statute in compliance with the Political Reform Act—which, appellants argue, did not occur.
To determine which party is correct, we apply well-established rules of statutory interpretation.
For reasons that follow, the Legislature also in effect amended the Political Reform Act's section 88002, subdivision (a)(1) by taking away from the Attorney General the preparation of the ballot title for the High-Speed Train Bond Act.
When subdivision (a)(1) of section 88002 was adopted to specify that the ballot pamphlet must contain, among other things, a ballot "title" and number for each statewide measure, existing law provided that, like the official summary, the "ballot title" must be prepared by the "Attorney General," "may differ from the legislative or other title of the measure," and "shall express in not exceeding 100 words the purpose of the measure." (Former Pol. Code, §§ 3530, 3531 (Stats. 1961, ch. 23, § 3, pp. 582, 625); now Elec. Code, §§ 303.5, 342, 9004, 9005, 13282.) Existing law also required that, "[i]n providing the ballot title and summary," the Attorney General "shall give a true and impartial statement of the purpose of the measure in such language that the ballot title and summary shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure." (Former Pol. Code, § 1197, subd. (3) (Stats. 1913, ch. 631, § 1, pp. 1157, 1160); now Elec. Code, § 9051.)
Thus, we must interpret "title" in section 88002, subdivision (a)(1) to mean the ballot title prepared by the Attorney General. (See Curle v. Superior Court (2001)
In sum, by taking from the Attorney General the function of preparing the ballot title for the High-Speed Train Bond Act, and itself dictating the ballot title for the Act, the Legislature in effect amended section 88002, subdivision (a)(1). (See Franchise Tax Board v. Cory, supra, 80 Cal.App.3d at p. 776.)
Therefore, by taking from the Attorney General the function of preparing the ballot label for the High-Speed Train Bond Act, and itself dictating the ballot label for the act, the Legislature in effect amended the Political Reform Act.
Section 81012, subdivision (a) states the Political Reform Act "may be amended to further its purposes by statute, passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring and signed by the Governor, if at least 12 days prior to passage in each house the bill in its final form has been delivered to the commission [(the Fair Political Practices Commission (§ 82012))] for distribution to the news media and to every person who has requested the commission to send copies of such bills to him or her." (Italics added.)
As we have noted, the purposes of the Political Reform Act are, among other things, to promote impartiality and to eliminate conflicts of interest in the performance of governmental duties. Consistent with these purposes, we have construed section 88002, subdivision (a)(1) and (2), provisions of the Political Reform Act, to require the Attorney General to prepare the ballot label, title and official summary for each state measure placed on the ballot for a vote of the electorate. And other statutes enacted consistent with, and in furtherance of the purposes of the Political Reform Act, require the Attorney General to prepare an impartial statement of the purpose of the measure, in language that is not an argument, and is not likely to create prejudice, for or against the measure (Elec. Code, § 9051), and preclude the Attorney General from preparing the ballot title and summary of a measure for which the Attorney General is a proponent (Elec. Code, § 9003).
And they do not comply with section 81012, subdivision (b), which allows the Political Reform Act to be amended "by a statute that becomes effective only when approved by the electors." The parts of the High-Speed Train Bond Act in which the Legislature prepared the ballot label, title and summary of Proposition 1A, and precluded the Attorney General from revising them other than to include a financial impact statement (Stats. 2008, ch. 267, § 11, subd. (f)(1) & (2)) were not submitted to the electorate as part of Proposition 1A and, therefore, were not approved by voters when they adopted Proposition 1A. (Stats 2008, ch. 267, § 9; Supplemental Voter Information Guide, Gen. Elec. (Nov. 4, 2008) text of proposed law, pp. 10-13.)
The judgment of the superior court is reversed to the extent that it denies appellants' petition for a peremptory writ of mandate directing the Secretary of State to obtain from the Attorney General an impartial ballot label, title and summary of Proposition 1A, and to use them instead of those prepared by
Nicholson, Acting P.J., and Hull, J., concurred.
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