We granted review to address an issue of first impression: the proper interpretation of California Constitution, article XVIII, section 1 (article XVIII, section 1), which requires in its second sentence that when the Legislature proposes an amendment of the state Constitution, "[e]ach amendment shall be so prepared and submitted that it can be voted on separately."
We conclude, as did the Court of Appeal below, and consistently with our provision's language and history and more than a century of out-of-state decisions construing the essentially identical provisions of nearly 30 other state constitutions, that the separate-vote provision is a limitation upon legislative power to submit constitutional amendments to the voters.
We disagree, however, with the Court of Appeal below, concerning the applicable test for determining whether, in a given case, the Legislature's submission of constitutional
So construing the separate-vote provision of article XVIII, section 1, we conclude that the Legislature's proposed submission, in a single constitutional amendment, of two changes to the state Constitution that are not germane to a common theme, purpose, or subject, violated the constitutional separate-vote requirement. Accordingly, we affirm this aspect of the judgment rendered by the Court of Appeal, although for reasons different from those relied upon by that court.
We also address the question of remedy. The Court of Appeal, by a two-to-one vote, ordered the Secretary of State to separate the two proposed constitutional changes at issue in this matter into two measures for submission to the voters. When ruling upon this matter in the weeks preceding the November 2004 general election (and only days before the deadline for the printing of ballot materials), we declined to disturb the Court of Appeal's order, and the voters of this state subsequently adopted each separated constitutional amendment. Although we conclude that the Court of Appeal erred by ordering bifurcation, we find it unnecessary and inappropriate to invalidate either of these separately submitted and approved constitutional amendments.
Proposition 62, an initiative that qualified for the November 2, 2004, statewide General Election ballot, proposed a constitutional amendment to permit so-called open primaries.
The first change concerned primary elections and evidently was designed to conflict with and supersede the competing initiative measure, Proposition 62. This part of Resolution 103 proposed to amend
After Resolution 103 was designated Proposition 60 by the Secretary of State, petitioners Californians for an Open Primary and Nick Tobey (Californians for an Open Primary) — proponents of Proposition 62 — filed a petition for a writ of prohibition in the Court of Appeal, seeking to bar the Secretary of State from placing Proposition 60 on the general election ballot on the ground that its submission as a single ballot proposition would violate the separate-vote provision of article XVIII, section 1. The Legislature of the State of California filed opposition. The Court of Appeal agreed with Californians for an Open Primary that Resolution 103, submitted in a single measure as Proposition 60, violated the Constitution's separate-vote provision. In reaching that conclusion, the appellate court relied upon the Oregon Supreme Court's construction of that state's own separate-vote provision and unanimously endorsed a strict test focusing upon "`whether, if adopted, the proposal would make two or more changes to the constitution that are substantive and are not closely related.'" (Quoting Armatta, supra, 327 Or. 250, 959 P.2d 49, 64, italics added.) The Court of Appeal also unanimously found that the proposed submission violated this test but, by a two-to-one vote, rejected the assertion that Proposition 60 should be stricken from the ballot, instead issuing a peremptory writ of mandate directing the Secretary of State to prepare the ballot "so that section 5 of article II and section 9 of article III, as proposed in [Resolution 103], will be submitted to the voters as separate measures to be voted on separately."
Both Californians for an Open Primary and the Legislature petitioned this court for review. The petition of Californians for an Open Primary took issue with substantial aspects of the Court of Appeal's analysis, but agreed with the lower court's conclusion that submission of Proposition 60 as a single measure would violate the separate-vote provision. Petitioners urged, however, that the Court of Appeal
We unanimously granted review to address the merits of both substantive issues presented — that is, the proper interpretation of article XVIII, section 1, and the Court of Appeal's bifurcation remedy. In light of the impending election and ballot preparation deadlines, we also ordered the Secretary of State to place Resolution 103 on the November 2004 ballot "in the manner directed by the Court of Appeal" — that is, as Propositions 60 (the primary-election provision) and 60A (the state property/bonds repayment provision), and we denied the request for a stay.
As noted above, although Californians for an Open Primary agrees with the Court of Appeal's conclusion that the separate-vote provision of article XIII precluded the Legislature from joining the disparate provisions of Resolution 103 in a single proposed constitutional amendment, it maintains that the Court of Appeal erred in bifurcating the resolution into two separate proposed constitutional amendments and directing that the measure be placed on the ballot as two separate propositions. In the briefing filed in this court after the November 2004 election, Californians for an Open Primary argues that the Court of Appeal's error in this regard requires invalidation of both constitutional amendments despite the voters' approval of each measure at the November 2004 election. Because Californians for an Open Primary maintains that the appropriate remedy in this case is invalidation of the two measures enacted by the voters, the remedy issue that is presented remains alive and is not moot.
Article XVIII, addressing the subject of Amending and Revising the Constitution, is comprised of four sections. The first section — the second sentence of which we must construe in this case — provides: "The Legislature by rollcall vote entered in the journal, two thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately." (Art. XVIII, § 1, italics added.)
On its face, the separate-vote provision appears to limit legislative power. The Legislature, however, insists that this provision in fact has a different and quite opposite purpose and effect. It argues that instead of limiting legislative authority to package disparate proposed changes in a single measure, the separate-vote provision
As explained below, we do not find support for the Legislature's view in the language of the second sentence of article XVIII, section 1, or in the provision's history or the case law construing that provision or similar provisions in the charters of our sister states. Nor, contrary to the Legislature's position, do we find support for its construction of the provision in past legislative constitutional amendment measures adopted by the electorate, or in the circumstance that, since 1962, the Legislature has had authority to propose not only amendments to the Constitution, but revisions as well.
We first review the text of the provision. Its first sentence, addressing the power to propose a constitutional amendment or revision, is directed expressly to "the Legislature." The second sentence, which we must construe in the present case (providing that "[e]ach amendment shall be so prepared and submitted that it can be voted on separately") also appears to be directed to the Legislature. There is no indication in the language of the provision that the second sentence was directed toward an unidentified entity within the executive branch, such as the Secretary of State.
The Legislature insists nevertheless that the word "amendment" in the second sentence of article XVIII, section 1 (the separate-vote provision) means or refers to the legislative vehicle employed by the Legislature, that is, a resolution proposing a Senate Constitutional Amendment or an Assembly Constitutional Amendment. We note, however, that the same word ("amendment") also appears in the first sentence of section 1 of article XVIII. In that context it is clear the word refers not to the legislative vehicle for proposing a change, but instead to the substantive content of such a proposal. Although it is possible that the word "amendment" might be employed in a different sense in the second sentence of article XVIII, section 1, as explained below there is no evidence
Mindful of the admonitions set forth by Justice Landau in his article, A Judge's Perspective on the Use and Misuse of History in State Constitutional Interpretation (2004) 38 Val.U. L.Rev. 451 (Landau),
By the time of California's second (and only other) Constitutional Convention, in 1878-1879, this deferential approach to legislative submission of proposed constitutional amendments had been rejected in
California's drafters in 1878-1879 followed this trend. Three delegates offered three different proposals for a procedure to amend the Constitution, each of which rejected the deferential approach of the 1849 Constitution under which the Legislature was granted unregulated power to "prescribe" the "manner" of submission to the electorate. (Cal. Const. of 1849, art. X, § 1.) Each delegate suggested instead a separate-vote provision that was very similar to those existing at that time in the various other state constitutions cited above.
In mid-December of 1878 the committee filed its first report, proposing to retain the basic structure of the then-existing 1849 Constitution's corresponding article X by addressing in section 1 the issue of amending the Constitution by a vote of the people, and by addressing in section 2 the issue of revising the Constitution by calling a convention. Regarding section 1 and the process of amendment, the committee proposed to require a two-thirds vote of each legislative house on "any amendment or amendments," and to retain the language, very similar to that present in the 1849 Constitution and the then-existing charters of many other states, imposing upon the Legislature the "duty ... to submit such proposed amendment or amendments to the people in such manner and at such time as may deemed expedient." (2 Willis & Stockton, supra, p. 800.) But the committee, consistent with all three proposals from the convention delegates and with the corresponding provisions of the then-extant charters of most other states, also included a further clause, as follows: "Should more than one amendment be submitted at the same election, they shall be so prepared and distinguished, by numbers or otherwise, that they can be voted on separately." (Ibid.)
The committee's proposal thereafter came up for debate before the assembled delegates in early February 1879. (3 Willis & Stockton, supra, at p. 1276.) Insofar as section 1 was concerned, the delegates debated and ultimately voted to retain the rule requiring a two-thirds vote of both houses, and they debated and ultimately revised the provision's publication requirement (id., at pp. 1276-1277), but there was no debate or discussion concerning the separate-vote provision. (Ibid.) When the matter again came up for vote approximately two weeks later, the delegates adopted the language quoted above and referred it to the Committee on Revision and Adjustment. (Id., at pp. 1445-1446.) Approximately 10 days later, that committee proposed to designate the provision article XVIII, sections 1 and 2, and to make various technical amendments to both sections, including one to section 1's separate-vote provision itself. That amendment proposed to substitute the word "each" for "they" in the final clause, so that the provision would read as follows: "and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people in such manner, and at such time, and after such publication as may be deemed expedient. Should more than one amendment be submitted at the same election, they shall be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately." (Id., at p. 1505.)
In light of the history recounted above — that is, the apparently unchallenged view among the delegates that the 1849 Constitution's corresponding provision allowing the Legislature unfettered discretion to prescribe the "manner" of submission
We next review our case law's interpretation of the separate-vote provision of article XVIII, section 1. This court has addressed the provision only once, in Wright v. Jordan (1923) 192 Cal. 704, 221 P. 915 (Wright). As explained below, in doing so we repeatedly characterized the provision as imposing a "limitation" upon the Legislature, and not, as the Legislature now argues, a protection of a legislative prerogative and/or a limitation upon the Secretary of State.
The petitioner in Wright (the City Clerk of San Diego) sued the Secretary of State (Frank C. Jordan) to compel him to recognize and file the results of an election concerning the consolidation of the City of San Diego and the City of East San Diego. (Wright, supra, 192 Cal. 704, 706, 221 P. 915.) Secretary of State Jordan refused to take this action on the ground that the statute under which the consolidation election had proceeded was unconstitutional because, he asserted, it in turn was based upon an improperly adopted amendment to article XI, former section 8½ subdivision 7 of the Constitution. That constitutional amendment (governing consolidation elections) earlier had been adopted by the electorate as a constitutional initiative under the power conferred upon the voters by constitutional amendment in 1911. The Secretary of State argued in Wright that the prior amendment to article XI, former section 8½, subdivision 7, was void because it had not been adopted "in the manner required by the provisions of section 1 of article XVIII" (Wright, supra, 192 Cal. at p. 711, 221 P. 915) — that is, in the manner required of legislative constitutional amendments. In rejecting the Secretary of State's argument, this court in Wright quoted article XVIII, section 1's separate-vote provision and then noted that, with regard to the people's authority to adopt constitutional amendments through the initiative process, "no such limitation as is embodied in the provisions of section 1 of article XVIII ... can be found." (Wright, supra, 192 Cal. at p. 711, 221 P. 915.) The court in Wright twice more characterized section 1 of article XVIII as setting forth a "limitation" (Wright, supra, 192 Cal. at p. 711, 221 P. 915), and thereafter acknowledged that the amendment to article XI, former section 8½, subdivision 7 "effectuate[d] changes in several already existing articles, sections, and clauses of the constitution,
We conclude, contrary to the Legislature's suggestion, that Wright, supra, 192 Cal. 704, 221 P. 915, far from supporting the Legislature's interpretation of the separate-vote provision, does the opposite and supports the view that the provision imposes a limitation upon the Legislature.
Finally, we consider the decisions of our sister states construing their own essentially identical separate-vote provisions. Those opinions unanimously interpret their provisions as imposing a limitation upon the legislature's power to submit constitutional changes to the voters. Each decision has found, explicitly or implicitly, that the provision is designed to limit legislative power by barring submissions that otherwise might cause voter confusion or constitute "logrolling" — that is, the practice of combining two or more unrelated provisions in one measure, thereby forcing a single take-it-or-leave-it vote on matters that properly should be voted upon separately. (E.g., Gabbert v. Chicago, R.I. & P. Ry. Co. (1902) 171 Mo. 84, 70 S.W. 891, 897 (Gabbert); Jones v. McClaughry (Iowa 1915) 169 Iowa 281, 151 N.W. 210, 216; State v. Wetz (1918) 40 N.D. 299, 168 N.W. 835, 847 (Wetz); Kerby v. Luhrs (1934) 44 Ariz. 208, 36 P.2d 549, 551-552 (Kerby); Keenan v. Price (1948) 68 Idaho 423, 195 P.2d 662, 676; Moore v. Shanahan (1971) 207 Kan. 1, 486 P.2d 506, 516 (Moore); Carter v. Burson (1973) 230 Ga. 511, 198 S.E.2d 151, 156 (Carter); In re Initiative Petition No. 314 (Okla.1981) 625 P.2d 595, 603-605 (Petition No. 314); Andrews v. Governor of Maryland (1982) 294 Md. 285, 449 A.2d 1144, 1149-1150 (Andrews); State ex rel. Clark v. State Canvassing Bd. (1995) 119 N.M. 12, 888 P.2d 458, 461; IWP v. State Bd. of Land Com'rs (1999) 133 Idaho 55, 982 P.2d 358, 363 (IWP); Cambria, supra, 169 N.J. 1, 776 A.2d 754, 764.)
The Legislature insists, nevertheless, that its view — that the separate-vote provision protects the Legislature's right to package constitutional amendment measures as it sees fit — is supported by (i) contemporaneous and ongoing practices, and (ii) the circumstance that, since 1962, the Legislature has had authority to propose not only constitutional amendments, but also constitutional revisions. As explained below, we are not persuaded.
The Legislature cites approximately 30 constitutional amendment measures that it submitted to the electorate between 1892 and 2004, and argues that many if not most of those measures would have failed the strict test proposed below by the Court of Appeal. This circumstance, according to the Legislature, demonstrates the propriety of its own interpretation of the separate-vote provision.
We agree generally that long-established and adhered to practice with regard to a constitutional provision informs a court's interpretation of such a provision. (E.g., People v. Southern Pac. Co. (1930) 209 Cal. 578, 595, 290 P. 25 ["`contemporaneous and long continued construction'" of a constitutional provision "`by the legislature is entitled to great deference'"].) Indeed, early out-of-state cases so proceeded in arriving at a lenient and accommodating — rather than a narrow and strict — construction of their own separate-vote provisions. (E.g., State v. Timme (1882) 54 Wis. 318, 11 N.W. 785, 791-793 (Timme).) On the facts of the present case, however, we find the Legislature's argument unpersuasive.
The Legislature cites nothing to suggest that, at any time prior to the commencement of this litigation, the Legislature — by rule, legal opinion, or otherwise — actually held the presently stated view of the constitutional
In conclusion on this point — and contrary to the Legislature's argument based upon past practices — we find it highly improbable that, despite every other jurisdiction's long-standing view of the separate-vote provision as a limitation upon the Legislature's authority to submit proposed constitutional amendments, California's drafters, electors, and Legislature ever did (or reasonably could) view our own provision otherwise.
The Legislature argues that, even if, for the first eight decades of its existence, the separate-vote provision in California (like the essentially identical provision in numerous other jurisdictions) operated as a limitation upon the Legislature, that restraint effectively and silently was abrogated when, in 1962, the electorate amended the first sentence of article XVIII, section 1 — or at least when, in 1970, the electorate adopted the present version of article XVIII, section 1. In order to address the Legislature's contention, we must in some detail review the history upon which it relies.
Like many other states in the late 1950's and early 1960's, the California Legislature in 1956 authorized and thereafter appointed a Citizens Legislative Advisory Commission to make recommendations for legislative improvement and reform. (See, e.g., Advisory Com., Final Rep. to Cal. Leg. and Citizens of Cal. (Mar. 1962), p. 9.) One of the major recommendations of the Advisory Commission was that the Constitution should be changed to allow for the Legislature to propose not only amendments or the calling of a constitutional convention to revise the charter, but also to permit the Legislature to propose a wholesale or partial constitutional revision without the need to call a constitutional convention. (Id., at pp. 42-44.)
Thereafter, in 1963, the Legislature appointed a Constitution Revision Commission (Revision Commission), which undertook to analyze and propose to the Legislature revisions to the entire state Constitution. (See generally Sumner, Constitution Revision by Commission in California (1972) 1 Western St.U.L.Rev. 48.) Based upon the Revision Commission's recommendations, the Legislature in 1966 invoked its new power to propose revision of the Constitution and submitted for the electorate's approval resolution chapter 139 (Assem. Const. Amend. No. 13, Stats.1966, 1st Ex.Sess. 1966, res. ch. 139, pp. 960-982) (hereafter Resolution 139) — an omnibus proposed revision of articles III, IV, V, VI, VII, VIII, XIII, and XXII of the Constitution. Prior to setting forth the various proposed changes, Resolution 139 provided: "Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California ... hereby proposes to the people of the State of California that portions of the Constitution of the state be revised as follows: . . ." (Assem. Const. Amend. No. 13, Stats.1966, 1st Ex.Sess.1966, res. ch. 139, p. 960, second italics added.) Thereafter Resolution 139 set forth the Legislature's proposed amendments (including numerous repeals, modifications, and additions) to the eight disparate articles mentioned above.
Consistent with the Legislature's characterization of Resolution 139 as a proposed revision of the Constitution, the Attorney General's ballot title for the measure commenced as follows: "Constitutional Revision. Legislative Constitutional amendment...." (Ballot Pamp., Gen. Elec. (Nov. 8, 1966) analysis of Prop. 1-a, p. 1.) The Secretary of State designated this omnibus measure as Proposition 1-a (ibid.), and the electorate adopted it at the November 1966 general election.
After successfully promoting this major revision, the Revision Commission proceeded with the second phase of its work, considering changes to numerous additional articles of the Constitution, including the one at issue in the present litigation — article XVIII, as it recently had been amended in 1962. In its review of section 1 of that article, the Revision Commission focused upon "[t]he only restriction" that it contained — that is, the separate-vote provision. (Rev. Com., Article XVIII, Amending and Revising the Constitution, Background Study 7 (May 1967) p. 18 (hereafter Background Study 7).) The Revision Commission repeatedly characterized that provision as a "limitation" and, addressing its scope, cited this court's 1923
At some point after release of the Revision Commission's February 15, 1968 recommendations, the Legislature rejected the Revision Commission's recommendation to delete the separate-vote provision from the second sentence of article XVIII, section 1. Why the Legislature did so is not reflected in any document of which we are aware. As explained below, however, the Legislature's current position appears to be this: Either in the early 1960's, or during or after early 1968, the Legislature decided (against the Revision Commission's 1968 recommendation) to retain the separate-vote provision based upon a theory that the provision's language usefully could be construed — in the manner presently undertaken by the Legislature — as effectuating not a limitation upon its authority to submit amendments, but instead a protection of its asserted prerogative to package disparate proposed changes in a single measure as it wishes, without any restraint or interference by the Secretary of State. In addition, the Legislature appears to suggest that the electorate, by subsequently reenacting the separate-vote provision in November 1970 to read as it does today, confirmed the Legislature's latter (yet previously unstated) interpretation of the provision.
In other words, the Legislature suggests, even if prior to the 1962 amendment the separate-vote provision was solely a limitation upon the Legislature, subsequent to that event and culminating in November 1970, the provision metamorphosed into the opposite: a protection against any undoing of legislative packaging. In support, the Legislature relies upon inferences that it draws from the history of various ballot propositions proposed to the electorate in the late 1960's through November 1970.
As the Legislature observes, in 1968 the Legislature, following its earlier successful support of constitutional revision via 1966's Proposition 1-a, proposed resolution chapter 184 (Assem. Const. Amend. No. 30, Stats. 1968 (1968 Reg. Sess.) res. ch. 184, pp. 3301-3316) (hereafter Resolution 184) — a phase-two omnibus revision measure designed to make numerous additional changes to 13 disparate articles of the Constitution, including the article and provision here at issue, article XVIII, section 1. As noted above, in drafting the measure the Legislature, for reasons unclear,
Prior to setting forth the various proposed changes, Resolution 184 — like the earlier Resolution 139 from 1966 — provided that "the Constitution of the state be revised as follows: . . ." (Assem. Const. Amend. No. 30, Stats. 1968 (1968 Reg. Sess.) res. ch. 184, p. 3302, italics added.) Thereafter Resolution 184 set forth the Legislature's proposed revision of 13 disparate articles (II, IV, IX, X, XI, XII, XIII, XIV, XVII, XVIII, XX, XXII, and XXIV) of the state Constitution.
As had occurred under similar circumstances in 1966, and consistent with the Legislature's characterization of Resolution 184 as a proposed revision of the Constitution, the Attorney General's ballot title for the measure commenced as follows: "Constitutional Revision. Legislative Constitutional amendment. . . ." (Ballot Pamp., Gen. Elec. (Nov. 5, 1968) analysis of Prop. 1, p. 1.) The Secretary of State designated this omnibus measure Proposition 1. (Ibid.)
Among the numerous changes to various articles contained within that extensive measure was a proposal that the first sentence of article XVIII be amended in various ways, including (1) allowing the Legislature, in proposing either an amendment or a revision of the Constitution, to "amend or withdraw" its proposal, and (2) providing that all future amendments to or revisions of the Constitution be effective on the day after adoption by the voters. But, as noted above, contrary to the recommendation of the Revision Commission, the Legislature's proposed amendment retained, without substantive change, the separate-vote provision found in the second sentence of section 1. (Ballot Pamp., Gen. Elec. (Nov. 5, 1968) text of Prop. 1, p. 24 [setting forth the proposed language].) Proposition 1 also proposed related changes to former article IV, section 24, subdivision (a) of the Constitution (present Cal. Const., art. II, § 10, subd. (a)), in order to make that provision (which concerns the effective date of approved initiatives and referenda) consistent with the newly proposed "effective date" rule for amendments to or revisions of the Constitution. (Ballot Pamp., Gen. Elec. (Nov. 5, 1968) text of Prop. 1, p. 1 [setting forth the proposed language].) Proposition 1 failed to gain a majority vote at the 1968 election.
After that defeat, the Legislature divided and repackaged those same proposed revisions into four different measures for submission to the voters on the June 1970 special election ballot. In each of the four resulting resolution chapters — resolution chapter 331 (Assem. Const. Amend. No. 29, Stats. 1969 (1969 Reg. Sess.) res. ch. 331, pp. 4003-4008 [repackaging proposed changes to articles II, XI, XIII, and XXII]), resolution chapter 264 (Assem. Const. Amend. No. 31, Stats. 1969 (1969 Reg. Sess.) res. ch. 264, pp. 3934-3937 [repackaging proposed changes to articles XII, XIII, XIV, and XX]), resolution chapter 263 (Assem. Const. Amend. No. 30, Stats. 1969 (1969 Reg. Sess.) res. ch. 263, pp. 3933-3934 [repackaging proposed changes to articles X, XVII, and XX]), and finally, resolution chapter 340 (Assem. Const. Amend. No. 28, Stats. 1969 (1969 Reg. Sess.) res. ch. 340, pp. 4016-4019 (hereafter referred to as Resolution 340) [repackaging proposed changes to articles IV, XVIII, and XXIV]), the Legislature — as it had done earlier with respect to Resolution 139 in 1966 and Resolution 184 in 1968 — characterized the measure as proposing a revision (or partial revision) of the Constitution. (See Stats. 1969 (1969 Reg.
Through Resolution 340, the Legislature again (as it had in 1968) proposed to amend article XVIII, section 1, by (1) allowing the Legislature, after proposing a constitutional amendment or revision, to "amend or withdraw" its proposal; (2) changing the same article by establishing the "effective date" of amendments or revisions as the day following the electors' approval; and (3) making other substantive and nonsubstantive changes to the article — but again it did not propose any substantive change to the separate-vote provision. (Assem. Const. Amend. No. 28, Stats. 1969 (1969 Reg. Sess.) res. ch. 340, p. 4017.) The Legislature also proposed in the same measure (again, as it had in 1968) changes to article IV, section 24, subdivision (a) of the Constitution (present Cal. Const., art. II, § 10, subd. (a)), establishing the same effective date as that proposed with respect to constitutional amendments and revisions for all other ballot measures (that is, initiatives and referenda).
The Legislature's four repackaged resolutions became Propositions 2, 3, 4, and 5 on the June 1970 special election ballot. The Attorney General, consistent with the Legislature's designation of each as a revision or partial revision, prepared a title that prominently so labeled each matter. For example, with respect to Resolution 340, which became Proposition 5, the Attorney General's title in the ballot pamphlet read: "Partial Constitutional Revision: . . . Legislative Constitutional Amendment." (Ballot Pamp., Special Elec. (consolidated with Primary) (June 2, 1970) analysis of Prop. 5, p. 13.) Proposition 2 received a majority vote by the electorate, but Propositions 3, 4, and 5 were rejected.
Undaunted by this second setback, the Legislature, which was then in the process of preparing to submit to the voters in November 1970 numerous additional phase-three proposals from the Revision Commission (see generally Rev. Com., Proposed Revision 3 (Jan.1970-Apr.1971) pts. 1-6), responded by repackaging the failed Proposition 5 provisions and resubmitting them yet again. This time, however, the Legislature, perhaps wary of the electorate's apparent reluctance to adopt multisubject revisions titled as such, further divided the previously rejected provisions (and most other phase-three proposals as well) into separate measures that addressed discrete subjects (or as to which multiple amendments at least were germane to a common theme, purpose, or subject). The Legislature passed resolutions regarding these measures proposing "that the Constitution of the state be amended to read as follows: . . ." (italics added) — or essentially identical language to that effect. For example, failed Proposition 5 from the June 1970 ballot was further divided into two measures. In resolution chapter 147 (Assem. Const. Amend. No. 36, Stats. 1970 (1970 Reg. Sess.) res. ch. 147, pp. 3705-3707) (hereafter Resolution 147), the Legislature resolved to amend article XXIV's civil service provisions and that measure eventually was submitted to the voters as Proposition 14. Most relevant here, in resolution chapter 187 (Assem.
Consistent with the Legislature's various resolutions, the ensuing titles prepared by the Attorney General for these ballot propositions tracked the Legislature's characterizations. For example, with regard to Resolution 147 (the civil service measure), which became Proposition 14, the Attorney General's title in the ballot pamphlet read: "State Civil Service. Legislative Constitutional Amendment. . . ." (Ballot Pamp., Gen. Elec. (Nov. 3, 1970) analysis of Prop. 14, p. 23.) And, with regard to Resolution 187 (the measure here at issue), which became Proposition 16, the Attorney General's title appearing in the ballot pamphlet read: "Constitutional Amendments. Legislative Constitutional Amendment. . . ." (Ballot Pamp., at p. 27.)
Under the bolded subheading, Detailed Analysis by the Legislative Counsel, the voters were informed that Proposition 16 would, in addition to making some substantive changes, "restate" existing provisions of the two articles — "some with and some without substantive change." (Ballot Pamp., Gen. Elec. (Nov. 3, 1970) analysis of Prop. 16, p. 27.) The voters next were provided with a description of the "major changes" (ibid.) that would be accomplished by Proposition 16's proposed amendments to article XVIII
As noted earlier, upon the voters' adoption of Proposition 16 at the November 1970 general election, article XVIII (including the restated separate-vote provision found in the second sentence of its first section) was amended to read as it does today: "Each amendment shall be so prepared and submitted that it can be voted on separately."
In light of (and in some respects in spite of) the foregoing history, the Legislature asserts that the 1962 amendment to the first sentence of article XVIII, section 1, "[d]ispels any notion that [the second sentence of] section 1 is intended to prohibit multi-pronged amendments such as [Resolution 103]; a revision or partial revision by its very nature may encompass, without constraint, any combination of disparate discrete changes." The Legislature also argues that the subsequent "1970 amendment and restatement of section 1 and the events leading up to it unequivocally demonstrate that measures such as [Resolution 103] are entirely proper either as an
The history recounted above does not support the Legislature's position. The Legislature apparently fails to recognize the significance of the circumstance that the amendment made to article XVIII in 1962 was addressed exclusively to the first sentence of that article's section one, and that the amendment left untouched the second sentence of that section, which contains the separate-vote provision. In other words, although the 1962 amendment granted the Legislature the authority to propose either revisions or amendments (and, as the article subsequently was amended in 1970, also to amend or withdraw such proposals), it did not alter the rule that applies whenever the Legislature proceeds other than by way of a revision and instead proposes an amendment.
The history described above demonstrates that the Legislature, after the 1962 amendment expanding its authority to propose constitutional changes amounting to revisions, decided — over the contrary recommendation of the Revision Commission — to retain the separate-vote provision. There is no evidence that the Legislature at that time or thereafter considered the separate-vote provision to have metamorphosed from what the Revision Commission in 1967 aptly characterized as a "restriction" and "limitation" upon the Legislature's authority to package disparate amendments in a single measure, into the opposite — protection for an asserted legislative prerogative to package disparate proposed changes in a single measure as it wishes. And, most importantly, there is no evidence indicating that the voters who, upon the Legislature's third attempt in November 1970, finally adopted the Legislature's proposed changes to article XVIII, had any reason to believe that, by doing so, they were giving the separate-vote provision a meaning opposite from what had been understood previously and that also would conflict dramatically with the meaning unanimously attributed to essentially identical provisions in scores of decisions rendered in sister-state jurisdictions.
In an effort to demonstrate that viewing the second sentence of article XVIII, section 1, as a limitation imposed upon the Legislature's authority would conflict with past practice and assertedly call into question numerous past measures in which the electorate has adopted amendments to the Constitution, the Legislature highlights
We disagree. Propositions 2, 3, 4, and 5 on the June 1970 ballot — each of which, at the recommendation of the Revision Commission, combined in a single measure numerous substantively disparate amendments to multiple unrelated articles — possibly might have "breached" the separate-vote provision had each proposition been submitted to the voters as a single packaged "amendment," but they were not so presented. As noted above, each measure instead was proposed by the Legislature (upon recommendation of the Revision Commission) as a revision or partial revision, and each was so titled by the Attorney General. By its terms, the second sentence of article XVIII, section 1 (containing the separate-vote provision) simply does not apply to measures properly presented to the electorate as revisions. Nothing in the presentation of Propositions 2, 3, 4, and 5 to the electorate on the June 1970 ballot supports the Legislature's current construction of the separate-vote provision.
For different reasons we reach the same conclusion with respect to Proposition 16 on the November 1970 ballot, which resulted in the present version of article XVIII, section 1. As noted above, that measure was characterized by the Legislature in Resolution 187 as an amendment; the Attorney General titled the resulting proposition as such, and the voters adopted that proposition as such without any reason to believe that in doing so they were endorsing a new or changed meaning for the separate-vote provision. Although Proposition 16, presented as an amendment and not as a partial revision, was subject to the separate-vote provision — and although, as the Legislature suggests, that measure might have violated the separate-vote provision if judged under the strict test proposed by the Court of Appeal below — we shall, for reasons explained post, part II. B.3, reject the exacting test applied by the lower court. Under the test that we shall confirm in this case — essentially the same test employed by the vast majority of our sister-state jurisdictions for approximately 125 years — 1970's Proposition 16 is not called into question under the separate-vote provision of article XVIII, section 1.
In conclusion on this point, we find no support in the language or history of the
We next consider the nature and scope of that limitation, and the test to be applied in discerning whether a violation of the separate-vote provision has occurred.
Although we reject the Legislature's interpretation of article XVIII, section 1, and find instead that the provision restricts legislative authority to submit disparate proposed constitutional changes in a single measure, as further explained we also disagree with the position taken by Californians for an Open Primary in its briefs, and the Court of Appeal below, that we should endorse a recent trend commenced by the Oregon Supreme Court in Armatta, supra, 327 Or. 250, 959 P.2d 49, and construe our separate-vote provision as requiring a test different from and stricter than the traditional test employed under the related constitutional single subject rule. For the reasons that follow, we find no basis for that position in the words of our Constitution's separate-vote provision or in the history of our charter. We also find no rationale for concluding — as we would have to, were we to construe the provision as proposed — that the Constitution should be interpreted in a manner that would impose a restraint upon the Legislature's power to submit constitutional amendments to the voters greater than that imposed upon the people through the initiative process.
Instead, we shall adopt the approach that is, and has been, the majority rule in our sister state jurisdictions for approximately 125 years: the separate-vote provision should be construed consistently with its kindred provision, the single subject rule. We already have rejected, in part II.1, the Legislature's argument that the word "amendment" in article XVIII, section 1 ("[e]ach amendment shall be so prepared and submitted that it can be voted on separately") refers to the legislative vehicle (the resolution proposing the constitutional amendment) by which the Legislature transmits a proposed amendment to the Secretary of State for eventual submission on the ballot. We shall explain below that the word "amendment" as used in the provision refers to a substantive change or group of substantive changes that are reasonably germane to a common theme, purpose, or subject. If (as in this case) the Legislature proposes to the electorate in such a resolution that the Constitution should be amended in a manner that presents in a single measure substantive
The California Constitution, like that of most states, long has contained not only the separate-vote provision at issue in this case, but also a related "single subject" provision. Indeed, California has two single subject provisions: one, which has existed in the California Constitution since 1849, requires that statutes "embrace but one subject" (Cal. Const., art. IV, § 9); the other, added to the Constitution in 1948, extends that rule to initiatives proposing either statutory or constitutional changes. (Cal. Const., art. II, § 8, subd. (d) ["An initiative measure embracing more than one subject may not be submitted to the electors or have any effect"].)
Although we have not previously construed our own separate-vote provision (except in the dictum of Wright, supra, 192 Cal. 704, 712-713, 221 P. 915, discussed ante, fn. 13), we long have construed our two single subject provisions in an accommodating and lenient manner so as not to unduly restrict the Legislature's or the people's right to package provisions in a single bill or initiative. (E.g., Fair Political Practices Commission v. Superior Court (1979) 25 Cal.3d 33, 39, 157 Cal.Rptr. 855, 599 P.2d 46 (Fair Political Practices Commission); Perry v. Jordan (1949) 34 Cal.2d 87, 92-93, 207 P.2d 47, and cases cited [construing identically the statutory and initiative versions of the constitutional single subject provisions].) We have found the single subject rules to have been satisfied so long as challenged provisions meet the test of being reasonably germane to a common theme, purpose, or subject. (Senate of the State of California v. Jones (1999) 21 Cal.4th 1142, 1157, 90 Cal.Rptr.2d 810, 988 P.2d 1089 (Jones); Legislature v. Eu (1991) 54 Cal.3d 492, 512, 286 Cal.Rptr. 283, 816 P.2d 1309 (Eu); Brosnahan v. Brown (1982) 32 Cal.3d 236, 243-253, 186 Cal.Rptr. 30, 651 P.2d 274 (Brosnahan); Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1099, 240 Cal.Rptr. 569, 742 P.2d 1290; Perry, supra, 34 Cal.2d at pp. 92-93, 207 P.2d 47.)
Numerous out-of-state decisions long have observed that single subject provisions (sometimes called a single object provision) and separate-vote provisions share the same purpose of preventing voter confusion and "logrolling" — that is, the practice of combining in one measure two or more unrelated provisions, thereby forcing a single vote on matters that properly should be voted upon separately. For example, a leading early decision of the Missouri Supreme Court, Gabbert, supra, 171 Mo. 84, 70 S.W. 891, explained: "The convention which required each amendment to be separately submitted also ordained that no act of the legislature should contain more than one subject, and that subject should be clearly expressed in the title. The same common purpose actuated the convention in placing these two provisions in the constitution. "It was intended to kill logrolling, and prevent unscrupulous, designing men, and interested parties, from . . . comprising subjects diverse and antagonistic in their nature, in order to combine in its support members who were in favor of a particular measure." (Id., at p. 897, italics added.)
The early separate-vote provision decisions, many of which still are leading authorities today, adopted a lenient test focusing upon the germaneness of proposed changes relating to a common subject — and those decisions rejected tests that required a strict or close relationship between changes. For example, in the first 19th-century decision to address the issue, the Wisconsin Supreme Court in Timme, supra, 54 Wis. 318, 11 N.W. 785, held that an amendment changing sessions of the state legislature from annual to biennial and altering the terms of office and times of election was properly submitted in a single ballot measure in order to "accomplish a single purpose." (Id., at p. 791.) The court rejected a rule that "every proposition in the shape of an amendment to the constitution, which standing alone changes or abolishes any of its present provisions, or adds any new provision thereto, shall be so drawn that it can be submitted separately, and must be so submitted." (Id., at p. 790.) In an oft-quoted passage, the court in Timme noted the need to avoid a construction of the provision that would be so strict as to make it "practically impossible" or highly impracticable to amend the state constitution. (Ibid.)
Cases from other jurisdictions continued to follow that same course,
This lenient construction of separate-vote provisions continued in the mid-through late 20th century. Surveying the state of the law in the late 1940's, the Louisiana Supreme Court commented that "the courts [of various states] have accepted" the proposition that the separate-vote rule is honored so long as the "`several subjects'" of a constitutional amendment are "`germane to the general subject of the amendment.'" (State v. City of Baton Rouge (1949) 215 La. 315, 40 So.2d 477, 480-481 [upholding constitutional amendment revising local governmental boundaries and redistributing governmental powers, submitted as a single measure].) Thereafter decisions rendered from 1960 through 1982 by the high courts of Minnesota, Idaho, Missouri, Ohio, New Mexico, Georgia, and Maryland continued in the same vein.
As this lenient majority rule developed, a few decisions adopted a stricter test requiring an exacting inquiry into the relatedness of the various parts of a single measure. The earliest such case, Mississippi's decision in Powell, supra, 77 Miss. 543, 27 So. 927, concerned a single measure that provided, among other things, for the popular election of judges of both the state supreme court and of the trial courts. The court in Powell adopted a very strict functional relationship test that essentially required separate submission of any constitutional amendment provision that possibly could stand alone.
Soon thereafter the strict approach set forth in Powell was criticized as "too narrow" in the treatise mentioned earlier (Dodd, supra, at p. 181). A few years later the Mississippi high court reconsidered its position and overruled Powell in State ex rel. Collins v. Jones, supra, 106 Miss. 522, 64 So. 241 — embracing instead the deferential and lenient approach articulated in the "general trend" of decisions (id., at p. 252), including those set forth in the cases described ante, part II.B.1.
In Armatta, supra, 959 P.2d 49, the Oregon high court considered a challenge under its constitution's separate-vote provision
Applying its test, the court in Armatta found the various provisions of the challenged measure (for example, those altering existing constitutional provisions concerning (1) searches and seizures, (2) unanimous verdicts in murder cases, (3) the right to bail, and (4) qualification of jurors in criminal cases) "not related closely enough" (Armatta, supra, 327 Or. 250, 959 P.2d 49, 67, italics added). The court concluded that the measure violated the separate-vote provision and was invalid in its entirety. (Id., at p. 68.)
Based upon subsequent decisions applying Armatta's rule, it is clear that the
The Court of Appeal below concluded that "the formulation set forth in Armatta ... comports with the constitutional text, framework, historical development, and purpose of the separate vote requirement in [article XVIII,] section 1." Although in
The court in Armatta, supra, 327 Or. 250, 959 P.2d 49, asserted that because the Oregon separate-vote-rule provision is worded differently from that state's single subject provision and because the two provisions are located in different parts of the state Constitution, the court was required to "assume that they have different meanings...." (Id., at p. 56.) Likewise, in the California Constitution, the two provisions (the separate-vote provision and the two versions of the single subject rule) are worded differently from each other and are located in separate parts of the Constitution. (Compare Cal. Const., art. XVIII, § 1 [the separate-vote provision] with art. II, § 8, subd. (d), and art. IV, § 9 [the initiative and legislative single subject provisions].) Although we generally would agree that differently worded phrases often carry a different meaning, we note that historically, most jurisdictions that have both a single subject provision and a separate-vote provision have not construed those differently worded provisions differently from each other — and this has held true also in jurisdictions in which the two provisions are set forth together in the same subdivision
The state constitutional framework that confronted the court in Armatta is substantially different from ours in a significant way: Whereas under the California Constitution, the separate-vote provision regulates only proposed constitutional amendments submitted by the Legislature (and not those proposed by the electorate through the initiative process), in Oregon (and Arizona and Montana as well — see
This reasoning is inapplicable in California, because, as noted above, the California separate-vote provision applies only to constitutional amendments submitted by the Legislature; the people remain free to submit amendments to the Constitution unrestrained by the separate-vote provision and are limited only by the single subject provision. (Wright, supra, 192 Cal. 704, 711-712, 221 P. 915.) Accordingly, unlike the Oregon (and Montana and Arizona) courts, we cannot draw a distinction between mere legislation and constitutional amendments or conclude that whereas the former is subject to a lenient single subject test, the latter must be subjected to a strict separate-vote inquiry.
Indeed, our case law long ago rejected a corollary of the notion that underlies the Armatta analysis, and as explained below, our past action in doing so makes it especially inappropriate to follow the Armatta approach at the present time. Justice Manuel's dissenting opinion in Schmitz v. Younger (1978) 21 Cal.3d 90, 145 Cal.Rptr. 517, 577 P.2d 652 argued that, although our single subject provision for statutes (Cal. Const., art. IV, § 9) has been and should be leniently construed, "the special nature of the initiative process requires a narrower [that is, more exacting] construction" under the single subject provision of California Constitution, article II, section 8, subdivision (d), because, for various reasons, "the dangers presented by a multisubject proposal are much more limited in the legislative context than in the initiative context." (Schmitz, supra, 21 Cal.3d at p. 99, fn. omitted, 145 Cal.Rptr. 517, 577 P.2d 652.) Specifically, Justice Manuel proposed that when reviewing initiative measures we should impose a "functional relationship" inquiry — a test substantially similar to the "closely related" test of Armatta, supra, 327 Or. 250, 959 P.2d 49. (Schmitz, supra, 21 Cal.3d at pp. 97-100, 145 Cal.Rptr. 517, 577 P.2d 652.) A majority of our court in Brosnahan, supra, 32 Cal.3d 236, 248-249, 186 Cal.Rptr. 30, 651 P.2d 274, however, rejected Justice Manuel's call for a heightened single subject inquiry with respect to initiative measures.
Having declined in Brosnahan to construe the state Constitution as imposing a heightened burden on the people's right under article II, section 8, subdivision (d) to propose legislative or constitutional change by initiative, compared with the single subject requirement under article IV, section 9, for regular legislation, it would be anomalous indeed were we now to construe the Constitution's separate-vote provision as imposing upon the Legislature the essentially same heightened burden of establishing functional relatedness that we earlier declined to impose upon the electorate. And yet that is what would happen were we to agree with the Court of Appeal below and adopt the Armatta
No jurisdiction of which we are aware that allows amendment of its state constitution either by legislative submission or voter initiative discriminates in this manner by setting up a higher obstacle for legislative constitutional submissions than for initiative submissions by the voters, and we cannot imagine that doing so was the intent either of the various drafters over the years or of the voters who enacted, reenacted, and amended California's separate-vote provision. By contrast, if we follow the majority rule of our sister states and construe our separate-vote provision as requiring no more (and no less) than the constraint effectuated by the single subject rule, we shall avoid creating such an unprecedented and anomalous scheme.
Nor do we find that the history of California's separate-vote provision supports a strict test such as the one adopted by Armatta, supra, 327 Or. 250, 959 P.2d 49, or endorsed by the Court of Appeal below. In Cambria, supra, 169 N.J. 1, 776 A.2d 754 — one of the recent decisions that has followed Armatta — the New Jersey Supreme Court discerned in that state's 1844 constitutional debates an intent not only that its separate-vote provision would "encompass" the concept of a single subject rule (id., at p. 761), but also an intent to "requir[e] closer examination of the relationship between the parts of a proposed constitutional amendment than does the single [subject] test." (Id., at p. 765.) By contrast, we are unaware of any evidence in the relevant debates from the 1878-1879 California constitutional convention, or in any of the provision's subsequent history, suggesting that the separate-vote provision was intended to effectuate a limitation more exacting than that provided by the state's single subject rule.
We conclude that although the strict construction of the separate-vote provision recently embraced by Oregon and some other jurisdictions may find support in the constitutional language, history, constitutional framework, and case law of those other minority-rule states, the same cannot be said with regard to article XVIII, section 1 of the California Constitution. We hold that in California, as in the vast majority of states, the separate-vote provision has essentially the same effect as the single subject rule and requires only a showing that the challenged provisions are reasonably germane to a common theme, purpose, or subject. The separate-vote provision does not impose a stricter standard requiring a showing of "close" or "functional" relatedness.
Against our determination that the separate-vote provision in essence incorporates the requirements of the single subject rule, the Legislature insists that the delegates to the 1878-1879 constitutional convention affirmatively disclosed a contrary intention — namely, that the separate-vote provision not encompass a limitation tantamount
We do not agree. First, the Legislature's brief fails to characterize properly the substance of the 1878-1879 debate concerning the single subject provision. The cited passages disclose that the delegates did not, as a general matter, question the efficacy or propriety of a rule confining legislation to a single subject or to related subjects. Instead, the delegates appear to have accepted and generally endorsed retention of that rule from the Constitution of 1849.
In any event, we reject the Legislature's premise that the absence of debate concerning the scope of the limitation imposed by the separate-vote provision is revealing in this context. (See Landau, supra, 38 Val.U. L.Rev. 451, 474 [cautioning against "min[ing] ... silence for historical significance by means of negative inference"].) The Legislature reasons that, had it been understood by the delegates that the separate-vote provision would impose a substantive limitation similar to that under the single subject provision, those delegates who may have opposed the legislative single subject provision also would have opposed a constitutional amendment including such a separate-vote provision. As noted above, however, the Legislature fails to demonstrate that any delegate (let alone a majority of them) objected on the merits to the continuation of the 1849 Constitution's single subject limitation upon regular legislation. But even if some delegates had so objected, it would not follow that they also would have opposed a similar limitation by means of the separate-vote provision; instead, those delegates might well have considered it a wholly different and unobjectionable matter to impose such a similar limitation upon the considerably more momentous act of amending the state's fundamental charter. As the Supreme Court of New Jersey observed in Cambria, supra, 169 N.J. 1, 776 A.2d 754: "Amendments to an organic body of law are a serious matter. The [state constitution] contains our most fundamental ideas about the type of government we want to have and how it should function, and the relationship between that government and the people.... The [legislative constitutional amendment] process is appropriately more complex than simple lawmaking...." (id., at p. 764, italics added) — and, we would add, the substantive rules governing the scope of legislative constitutional amendments certainly should be no less demanding than the substantive limitations governing mere legislative acts.
The Legislature does not argue that Resolution 103's two provisions — the primary elections provision (amending California constitution, article II by adding a new section 5, subdivision (b)), and the state property/bonds repayment provision (amending California Constitution, article III by adding a new section 9) — satisfy the traditional single subject provision test that, as we confirm today, also governs the
As demonstrated by the out-of-state cases discussed above, the normal remedy for violation of the separate-vote provision has been either (1) a preelection order barring submission of the measure to the voters in a single package, or (2) postelection invalidation of a measure that improperly was submitted to the voters in a single package. In the present case, as noted earlier, the Court of Appeal devised an alternative remedy: it rejected, by a two-to-one vote, the assertion of Californians for an Open Primary that Proposition 60 should be stricken from the ballot, and instead issued a peremptory writ of mandate directing the Secretary of State to bifurcate the two provisions and submit them to the voters separately. Also, as noted above, after we granted review in this matter, and in light of the then-impending election and ballot preparation deadlines, we rejected the request of Californians for an Open Primary for a stay, instead ordering the Secretary of State to place Resolution 103 on the November 2004 ballot "in the manner directed by the Court of Appeal" — that is, as Propositions 60 (the primary elections provision) and 60A (the state property/bonds repayment provision). Thereafter the voters at the November 2004 election, while rejecting Proposition 62, enacted both Propositions 60 and 60A.
Californians for an Open Primary observes that the resulting bifurcated provisions that were placed on the ballot proposed two constitutional amendments, neither of which, standing alone, had received the approval of two-thirds of each house of the Legislature as required by the first sentence of the first section of article XVIII. Californians for an Open Primary argues: "[Resolution 103] was the product of coalition-building in the Legislature.... [I]t is not at all clear that the requisite two-thirds majority of each house would have supported the separate submission to the voters of Propositions 60 and 60A. Most importantly, nobody in the Legislature ever proposed that Proposition 60 or 60A be submitted to the voters separately for their approval." Relying upon our observation in Livermore, supra, 102 Cal. 113, 117-118, 36 P. 424, that "the power of the legislature to initiate any change in the existing organic law ... is to be strictly construed under the limitations by which it has been conferred" and "cannot be ... enlarged beyond these terms," Californians for an Open Primary argues that because the two amendments were not separately approved by the Legislature, they must be invalidated now, even though the voters enacted each separately in November 2004. In other words, whereas in its petition for a writ of mandate filed prior to the November 2004 election, Californians for an Open Primary originally sought to have the combined measure withheld from the ballot, it now argues that bifurcation was improper and that the appropriate post-election remedy is to invalidate both Propositions 60 and 60A.
The Legislature, in its opening brief filed prior to the November 2004 election,
We conclude that the Court of Appeal erred in bifurcating the two measures. Nothing in the language or history of article XVIII generally, or of the separate-vote provision in particular, suggests that a violation of the provision should be remedied by bifurcation of proposed amendments and the presentation of those matters to the electorate in separate measures. Nor do we discern in our case law, or in that of any other jurisdiction, any suggestion that bifurcation is an appropriate remedy in such a circumstance. Finally, we find it instructive that the analogous initiative single subject provision (Cal. Const., art. II, § 8, subd. (d)) precludes the related remedy of severance.
Indeed, allowing bifurcation of a measure that violates the separate-vote provision would permit — if not encourage — logrolling-type manipulations that in turn would frustrate one purpose of the separate-vote provision. If, for example, it were known in advance that bifurcation was a potential and permissible remedy, factions within the Legislature, none of which on its own could garner a two-thirds vote for a particular amendment, might join forces by agreeing to present disparate proposed amendments in a single measure, knowing that a court likely would find a separate-vote violation but thereafter could order the provisions bifurcated and presented separately to the electorate as discrete amendments. In this manner, legislators constituting less than two-thirds of each house could place such measures before the voters in violation of the rule set forth in the first sentence of article XVIII, section 1.
Although we conclude that the Court of Appeal erred in directing the Secretary of State to bifurcate the two measures and place them on the ballot, we conclude that under the unusual circumstances of this case, it would be inappropriate to invalidate the two approved measures, each of which, as noted, subsequently was separately approved by the voters after this court, in the face of the then-impending election, declined to stay the Court of Appeal's bifurcation order. (Cf. Assembly v. Deukmejian (1982) 30 Cal.3d 638, 652, 669, 180 Cal.Rptr. 297, 639 P.2d 939 [refusing, under the "unusual and unique circumstances" there presented, to invalidate redistricting referendum petitions that clearly violated the Elections Code, and ordering the use of redistricting plans that had been stayed by the referendum, because doing so "minimize[d] the potential disruption of the electoral process" (italics omitted)].)
The potential for manipulation of the process that we described at the close of part IV, ante, manifestly did not occur here. There is no basis upon which to conclude that any legislator could have, or did, anticipate the Court of Appeal's adoption of its novel bifurcation remedy. Indeed, as the briefing in this matter discloses, the Legislature was surprised by, and strenuously objected to, the solution imposed by that court.
In light of the absence of any prior definitive California ruling with regard to either the scope of the separate-vote provision or the remedy for its violation, and in light of the circumstance that the two proposed amendments ultimately were separately submitted to the voters and separately adopted as Propositions 60 and 60A after the electorate was afforded an opportunity to consider the arguments for and against each measure, we do not invalidate those constitutional amendments.
For the reasons discussed above, the judgment of the Court of Appeal is vacated and the matter is remanded to the Court of Appeal with directions to discharge the alternative writ and to deny the request that a peremptory writ issue to invalidate Propositions 60 and 60A. Each party shall bear its own costs in this proceeding.
WE CONCUR: KENNARD, BAXTER, CHIN, and CORRIGAN, JJ.
Concurring Opinion by WERDEGAR, J.
I concur in the judgment remanding the matter to the Court of Appeal with directions to discharge the alternative writ and to deny the request that a peremptory writ issue to invalidate Propositions 60 and 60A. I write separately to express my views concerning the propriety of addressing the validity of the bifurcated propositions postelection. As I shall explain, I believe the question of the validity of the enacted measures is moot, either because the Legislature's violation of California Constitution article XIII, section 1 was a procedural irregularity only or, if a substantive violation, this court has before it no pleading requesting declaratory relief.
I. Procedural irregularity
"[W]hen, pending an appeal from the judgment of a lower court, and without any
We faced an analogous situation in Lenahan v. City of Los Angeles (1939) 14 Cal.2d 128, 92 P.2d 1014 (Lenahan), in which the plaintiffs, alleging defects in the manner in which petition signatures for a recall election had been collected, sought and were denied an injunction against holding the election. Reviewing the case after the election, this court dismissed the plaintiffs' appeal as moot: "It appears beyond question that every act sought to be enjoined has actually taken place. The election has been held and it is not even intimated that any of the alleged deficiencies or irregularities in the presentation and certification of the recall petition prevented a full and fair vote at the recall election.... The nature of the action was such that when the injunctive relief therein sought was rendered inappropriate and ineffective, any further consideration of the cause as an action in injunction would be unavailing.... Certainly they [the plaintiffs] may not, after the election has been held, still urge a court to stop it." (Id. at p. 132, 92 P.2d 1014.)
Our courts have repeatedly followed the reasoning of Lenahan, applying it to referenda as well as recalls and to writ petitions as well as actions for injunctive relief. Where the plaintiffs have challenged only the procedures leading to the recall election or to the placement of the referendum measure on the election ballot, and sought only to prevent the election or remove the measure from the ballot, the election's actual occurrence has been considered to render the case moot. (See Mapstead v. Anchundo (1998) 63 Cal.App.4th 246, 273-277, 73 Cal.Rptr.2d 602; Chase v. Brooks (1986) 187 Cal.App.3d 657, 661-662, 232 Cal.Rptr. 65; Long v. Hultberg (1972) 27 Cal.App.3d 606, 608-609, 103 Cal.Rptr. 19.) And, as this court recently recognized in Costa v. Superior Court (2006) 37 Cal.4th 986, 39 Cal.Rptr.3d 470, 128 P.3d 675, the principle is equally applicable to initiative measures. Discussing challenges that attempt to keep a measure off the ballot on the basis of a procedural defect "hav[ing] no effect on the material that is before the voters or on the fairness or accuracy of the election result," the Costa majority, citing Lenahan and its progeny, explained that such procedural challenges are properly decided before the election, "because after
The critical challenge to Propositions 60 and 60A in this court—petitioners' contention that the Court of Appeal erred in bifurcating the measures as a remedy for the Legislature's separate-vote violation — is seemingly a purely procedural one that does not affect the material before the voters or the fairness of the election. As the majority opinion explains, bifurcation was an improper remedy because "neither of [the bifurcated measures] had received the approval of two-thirds of each house of the Legislature as required by the first sentence of the first section of article XVIII [of the California Constitution]." (Maj. opn., ante, 43 Cal.Rptr.3d at p. 352, 134 P.3d at p. 330.) Nevertheless, the two measures, as the majority observes, were separately approved by the voters, who received separate analyses and arguments on each. There is no suggestion that bifurcation "prevented a full and fair vote at the ... election" itself. (Lenahan, supra, 14 Cal.2d at p. 132, 92 P.2d 1014.)
II. Substantive invalidity
Contrary to the foregoing, the majority denies the case is moot. Whether the majority believes the violation in this case does or could affect the substantive validity of Propositions 60 and 60A is unclear. But while I agree postelection invalidation of a measure is appropriate when the challenge goes to its substantive validity (Costa v. Superior Court, supra, 37 Cal.4th at pp. 1105-1006, 39 Cal.Rptr.3d 470, 128 P.3d 675), in this case even a substantive challenge would not be justiciable postelection because petitioners did not plead for invalidation. The majority correctly observes petitioners have requested, in their postelection brief, that this court declare Propositions 60 and 60A invalid on the ground that invalidation is the appropriate remedy for the Legislature's violation of article XIII, section 1 of the California Constitution. (Maj. opn., ante, 43 Cal. Rptr.3d at p. 320, 134 P.3d at p. 303.) But the majority cites no authority suggesting a party's request can substitute for a formal pleading seeking declaratory relief, and I doubt it can. I question whether a plaintiff would, for example, be permitted to convert an action for injunctive relief, rendered moot by events occurring during the appeal, into a damages action merely by requesting an award of damages in his or her appellate brief.
While denying the case is moot, the majority concludes invalidation of the two approved measures would be "inappropriate." (Maj. opn., ante, 43 Cal.Rptr.3d at p. 354, 134 P.3d at p. 331.) What legal rule, if any, the majority articulates on this point—the only part of its opinion actually necessary to the judgment—is unclear, but I agree it would be "inappropriate"—indeed, erroneous—to grant petitioners on review relief beyond and different from that for which they pleaded.
Our legal inability to provide the relief actually pleaded for, a writ of prohibition against placing the disputed measures on the ballot, renders the action moot under Lenahan and its progeny. Under our previously announced principles of justiciability, the case is moot because "the controversy which the plaintiffs attempted to raise by the filing of their [writ petition] has, by reason of the subsequent election,
We may proceed to decide the issues in a moot case where those issues are "of continuing public interest and are likely to recur." (Cadence Design Systems, Inc. v. Avant! Corp. (2002) 29 Cal.4th 215, 218, fn. 2, 127 Cal.Rptr.2d 169, 57 P.3d 647; People v. Eubanks (1996) 14 Cal.4th 580, 584, fn. 2, 59 Cal.Rptr.2d 200, 927 P.2d 310.) I would, however, use this power sparingly in election cases; the court should not, by deferring decision on procedural challenges to ballot measures until after the election, avoid its duty to decide such election law disputes when effective relief can still be granted. As challenges to the procedures by which a measure is placed on the ballot will generally become moot after the election even if the measure is approved, the court should, whenever possible, decide such challenges before the election.
Concurring Opinion by MORENO, J.
I concur in the majority's result, but would approach this case somewhat differently, explaining why Senate Constitutional Amendment No. 18 of the 2003-2004 Regular Session (Sen. Const. Amend. No. 18, Stats. 2004 (2003-2004 Reg. Sess.) res. ch. 103; hereafter Resolution 103) is not a partial constitutional revision, and, therefore, is not exempt from the separate-vote requirement. In doing so, I hope to clarify the meaning of article XVIII, section 1 of the California Constitution.
As recounted by the majority, prior to 1962, constitutional revisions, which had been characterized as "far reaching and multifarious" constitutional changes (McFadden v. Jordan (1948) 32 Cal.2d 330, 332, 196 P.2d 787), could be made only by convening a constitutional convention. In 1962, article XVIII, section 1 was amended through the passage of Proposition 7 to allow the Legislature, upon a two-thirds vote, to place revisions to the Constitution, as well as amendments, on the ballot, but the separate-vote requirement applied only to amendments, not revisions. Article XVIII, section 1 now provides: "The Legislature by rollcall vote entered in the journal, two thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately."
On its face, the language of this provision is clear; each amendment to the Constitution must be voted on separately, but no such requirement applies to revisions of the Constitution. The application of this language, however, is problematic, because of the difficulty in distinguishing between multiple constitutional amendments, which must be voted on separately, and a constitutional revision, which may be approved in a single vote.
The California Constitution Revision Commission, formed shortly after the passage of Proposition 7, commented that "the Legislature, it seems, could easily get around the [separate-vote requirement] by the means of classifying the proposal as a revision. Consequently the provision as a limitation on the power of the Legislature seems to be of little practical value, except as a caution." (Cal. Const. Rev. Com. Article XVIII, Amending and Revising the Constitution, Background Study 7 (May 1967) p. 19.) The commission formally recommended to the Legislature that the separate-vote provision be deleted "as ineffective because it can be circumscribed by entitling several amendments as a revision." (Cal. Const. Rev. Com., Proposed Revision of Cal. Constitution (Feb. 15,
From the above history, two things can be fairly deduced: the Legislature must have had some reason for retaining the separate-vote requirement and must have had some reason for applying that requirement to amendments but not revisions. What were those reasons? Or to ask the question another way, within the context of this case, is there anything to prevent the Legislature from combining amendments on two unrelated subjects into a single initiative and designating it as a "partial revision" exempt from the separate-vote requirement? If the answer is negative, then this case is quite simple. The proper remedy would have been, as the Legislature argued before the Court of Appeal, not the bifurcation of the two amendments found in the original Proposition 60, but rather the relabeling of that proposition as a partial constitutional revision.
One possible answer to the above questions is to maintain that there is no difference between two or more amendments and a revision other than the label, but the label itself is significant. This position is suggested by the majority's observation, based on the record of failed constitutional revisions in 1968 and 1970, that the electorate was apparently reluctant "to adopt multisubject revisions titled as such...." (Maj. opn., ante, 43 Cal.Rptr.3d at p. 332, 134 P.3d at p. 313.) The term "revision," so the argument would go, puts voters on notice that what they are voting on is a far-reaching constitutional change or changes. Thus, the "revision" label is likely to cause voters to scrutinize the measure more closely than they would an amendment, which would obviate the need for a separate-vote requirement designed to prevent voter confusion.
The problem with this argument is that it is based on an unfounded assumption. There is no indication that people, other than attorneys and others who realize that "revision" is a term of art, would be inclined to scrutinize an initiative more closely simply because it is termed a "revision" rather than an "amendment." Indeed, the fact that the word "revision" is commonly used with the modifying adjectives "major" or "minor" indicates that the word by itself does not connote a far-reaching or consequential change. The failure of numerous proposed revisions at the ballot box was more likely the result of voters not wanting to vote for numerous constitutional changes in a block rather than because of the "revision" label.
Another possible answer to the above questions is to take a conventional approach to distinguishing between revisions and amendments, as the Court of Appeal did below. This approach can be found in cases addressing challenges to voter initiatives. Voters can propose amendments to the Constitution that will be placed on the ballot if the requisite number of signatures are obtained, but they may not propose constitutional revisions. (See Cal. Const., art. XVIII, § 3; Raven v. Deukmejian (1990) 52 Cal.3d 336, 349, 276 Cal.Rptr. 326, 801 P.2d 1077.) In addressing challenges to voter initiatives on the grounds that they are unconstitutional revisions, we have recognized that revisions "refer to a substantial alteration of the entire Constitution." (Amador Valley Joint Union High Sch. Dist. v. State Board of Equalization (1978) 22 Cal.3d 208, 222, 149 Cal.Rptr. 239, 583 P.2d 1281.) As we elaborated: "our analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change
The problem with this conventional approach is that it does not make a great deal of sense in the context of legislative proposed revisions. When labeling a voter initiative or part thereof as a "revision" has the consequence of invalidating the initiative because the revision could only have been proposed by a constitutional convention, then it is appropriate to set the bar for what constitutes a revision very high in order to give the electorate considerable scope to amend the Constitution. Because the Legislature now adopts constitutional amendments and constitutional revisions by the identical method, however, there would appear to be no purpose in so strictly confining the Legislature's ability to label a proposal a constitutional "revision." Indeed, strict limitations on the Legislature's ability may frustrate the purpose of legislatively proposed revisions, discussed at greater length below, of allowing disparate constitutional amendments to be placed in the same initiative in order to accomplish efficient constitutional reform.
In order to fathom the reason for retaining the separate-vote requirement, while not applying it to revisions, it is necessary first to understand the purposes behind the separate-vote requirement. As the majority states, the separate-vote requirement shares with the single subject rule the "purpose of preventing voter confusion and `logrolling' — that is, the practice of combining in one measure two or more unrelated provisions, thereby forcing a single vote on matters that properly should be voted upon separately." (Maj. opn., ante, 43 Cal.Rptr.3d at p. 339, 134 P.3d at p. 319.) These are two distinct rationales. Voter confusion occurs when, for example, numerous provisions are included in a single ballot measure, thereby making it unclear that voters actually are aware of all the provisions they are voting on. (See Manduley v. Superior Court (2002) 27 Cal.4th 537, 584, 589-589, 117 Cal.Rptr.2d 168, 41 P.3d 3 (conc. opn. of Moreno, J.).) With logrolling, voters may very well know what they are voting for, but are compelled to vote for a measure they might not otherwise support in order to pass an unrelated measure that is important to them. (See Gabbert v. Chicago, R.I. & P. Ry. Co. (1902) 171 Mo. 84, 70 S.W. 891, 897 [defining logrolling as combining in one initiative "`subjects diverse and antagonistic in their nature, in order to combine in its support members who were in favor of a particular measure'"].)
To understand why the separate-vote requirement would apply to amendments and not revisions, we must also better discern the purpose of a legislatively proposed
A legislatively proposed revision is therefore a means of "constitutional improvement," designed to "make coordinated broad changes to renovate outdated sections and articles [in the] Constitution." (Ballot Pamp., Gen. Elec. (Nov. 6, 1962) argument in favor of Prop. 7, p. 13.) Behind Proposition 7 there appears to have been the perception that the California Constitution was out of date and in need of major renovations. Making those renovations by means of piecemeal amendments, each subject to the separate-vote requirement, would be time consuming and inefficient. Indeed, the report by the Citizens Legislative Advisory Committee that initially recommended legislative constitutional revision recognized that "[t]he California Constitution is in need of a fundamental review" and that article-by-article revision would be inadequate to the task. (Advisory Com., Final Rep. to Cal. Leg. and Citizens of Cal. (Mar. 1962), pp. 39, 42-43.) As the history recounted in the majority opinion explains, the Legislature endeavored to systematically reform the Constitution in the wake of Proposition 7's passage, creating the California Constitution Revision Commission to generate proposed revisions consisting of numerous, often unrelated constitutional amendments. (See maj. opn., ante, 43 Cal.Rptr.3d at pp. 329-333, 43 P.3d at pp. 311-314.)
Given the above purpose, it is easy to understand why the separate-vote requirement would not apply to revisions. That requirement would defeat the very purpose behind a legislatively proposed constitutional revision — to permit the California Constitution to be efficiently overhauled by allowing the Legislature to put before voters packages of unrelated amendments. Although combining such unrelated amendments into one initiative may result in some risk of voter confusion, it appears evident that those enacting Proposition 7 believed the benefits of legislatively proposed revisions outweighed those risks.
Does that mean that by not applying the separate-vote requirement to legislative constitutional revisions, those who enacted Proposition 7 also intended to condone logrolling by the Legislature in the revision process? I do not believe so. A constitutional revision, by its very nature and purpose — systematic, comprehensive constitutional renovation and reform — appears to be inherently contrary to the practice of logrolling motivated by political expediency.
Therefore, although we cannot claim to comprehensively define the meaning of "constitutional revision," we can say with some assurance what it is not. It does not include an initiative consisting of multiple constitutional changes joined together for purposes of logrolling. And although we cannot ever know precisely why the Legislature of almost 40 years ago decided to retain the separate-vote requirement but not apply it to revisions, we can at least understand post hoc why that decision was reasonable: It allowed the Legislature considerable freedom in proposing constitutional
Of course, the legislative purpose behind a proposed revision may not always be evident. But as suggested by the history recounted in the majority opinion and by the ballot argument for Proposition 7, evidence of a constitutional revision's bona fides is generally readily available. The ballot argument, invoking the constitutional revision process in other states, described it as "extensive and significant constitutional changes, whether drawn up by an expert commission or a legislative committee." (Ballot Pamp., Gen. Elec. (Nov. 6, 1962) argument in favor of Prop. 7, p. 13, italics added.) The history of constitutional revision in this state, as described by the majority, involved such an expert commission, the California Constitution Revision Commission. Thus, a revision, as contemplated by those who drafted and enacted Proposition 7, is typically the product of the study and deliberation of a constitutional revision commission or equivalent commission or legislative committee, which reports to the Legislature with proposals that the latter then accepts, rejects or modifies. While such reports are not necessarily a prerequisite to a constitutional revision, they will generally indicate that the package of amendments is being proposed for purposes other than political expediency. And while the origins of voter-proposed initiatives are not always transparent, the origins of legislatively sponsored initiatives are typically made clear in such reports.
Turning to the present case, I will assume without deciding that a legislative initiative that proposes changes in only two subjects could under some circumstances be termed a "partial revision" exempt from the separate-vote requirement. Nonetheless, I conclude that Resolution 103 is not a bona fide partial revision because its evident purpose was logrolling. It was not the product of a study and deliberation by a commission or committee. Indeed, the Legislature does not dispute Californians for an Open Primary's characterization that Resolution 103 was rushed through the Legislature in response to Proposition 62, an open primary initiative. Resolution 103 offered changes on two unrelated subjects, one of which was the primary object of its proponents the classic logrolling situation. (See, e.g., Senate of the State of California v. Jones (1999) 21 Cal.4th 1142, 1160, 90 Cal.Rptr.2d 810, 988 P.2d 1089.) The Legislature has not claimed otherwise. Therefore, I would conclude that Resolution 103 could not have been redesignated as a partial revision.
I have been critical of what in my view is an overly lenient interpretation of the single subject rule as applied to voter initiatives. (See Manduley v. Superior Court, supra, 27 Cal.4th 537, 585-588, 117 Cal.Rptr.2d 168, 41 P.3d 3 (conc. opn. of Moreno, J.).) Because the Legislature has the freedom to propose constitutional revisions unconstrained by the separate-vote requirement, there is good reason to suppose, as suggested by the above discussion, that the separate-vote requirement should be interpreted more leniently than the single subject rule. But even so, that freedom has its limits, which the Legislature crossed in the present case.
Furthermore, I agree with the majority that bifurcation of the two measures encompassed by Resolution 103 was improper. Nonetheless, given the unique circumstances of this case, I also agree with the
The second portion of the order, signed by two justices, read as follows: "Like the majority, we neither endorse nor reject the Court of Appeal's view of the proper interpretation of the `separate vote' provision of article XVIII, section 1, of the California Constitution, or that court's determination regarding the appropriate remedy for a violation of that constitutional provision. We also concur in the majority's decision to grant the petitions for review. We would not, however, direct the Secretary of State to place Senate Constitutional Amendment No. 18 of the 2003-04 Regular Session [that is, Resolution 103] on the ballot for the November 2004 election as Propositions 60 and 60A, in the manner directed by the Court of Appeal." This portion of the order was signed by Justices Werdegar and Brown.
The Supreme Court of Pennsylvania, in Pennsylvania Prison Soc., supra, 565 Pa. 526, 776 A.2d 971, found a violation of that state's separate-vote provision with regard to a legislative constitutional amendment measure that presented to the voters in a single proposition provisions (1) restructuring the state board of pardons to change its composition and require decisions to be unanimous, and (2) requiring a majority rather than two-thirds vote of the state senate to confirm the governor's appointees to that board. (Id., at pp. 981-982.) The lead opinion, however, found it unnecessary, in the "unusual circumstances" presented (id., at p. 982), to declare the measure void, because, it determined, the measure actually made no substantive change to the state senate's confirmation process. (Id., at pp. 981-984; see also Bergdoll, supra, 557 Pa. 72, 731 A.2d 1261 [invalidating, under the state separate-vote provision, a legislative constitutional amendment measure that presented to the voters in a single proposition provisions (1) eliminating a "face-to-face" requirement under the state's confrontation clause, and (2) authorizing the legislature to enact laws regarding the manner in which children may testify in criminal proceedings].)
The Supreme Court of Idaho — consistently with its earlier minority-view decision in McBee, supra, 15 Idaho 761, 100 P. 97 (adopting a strict rule under which, if proposed provisions can stand alone, they must be presented alone) — invalidated, under that state's separate-vote provision, a legislative constitutional amendment that would have (1) allowed proceeds from the sale of school endowment lands to be used to acquire other lands, and (2) provided that auctions should take place regarding only sales (and not, alternatively, leases or sales) of such lands. The court concluded that these two provisions were "`"essentially unrelated"'" to each other. (IWP, supra, 133 Idaho 55, 982 P.2d 358, 363.)
Similarly, the Supreme Court of Arizona — again, consistently with its own earlier minority-view decision in Kerby, supra, 44 Ariz. 208, 36 P.2d 549 (adopting a strict rule under which proposed provisions may be presented in a single package only if they "should stand or fall as a whole") — invalidated, under that state's separate-vote provision, an initiative constitutional amendment that would have (1) eliminated public funding of statewide political campaigns, and (2) diverted all money then dedicated to the Clean Elections Commission into the state's general fund, thus making the commission's funding for its other responsibilities (beyond public campaign financing) dependent upon grants from the state legislature. (Clean Elections Institute, supra, 209 Ariz. 241, 99 P.3d 570, 575-577.)
Only in New Jersey has a high court that purports to embrace the Armatta test concluded that a challenged measure meets the requirements of the separate-vote provision. In Cambria, supra, 169 N.J. 1, 776 A.2d 754, that state's high court upheld, against a separate-vote provision challenge, a legislative constitutional amendment measure dedicating two new sources of revenue to the state's Transportation Trust Fund: (1) revenue from a petroleum products tax, and (2) revenue from a general sales and use tax on new motor vehicles. The court in Cambria found these two provisions "closely related" to each other. (Id., at p. 765.)