IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT _____________________________ )

HOWARD JARVIS TAXPAYERS ) ASSOCIATION, et al., )

) Plaintiffs and Appellants ) No. C060441

) v. ) )

DEBRA BOWEN, SECRETARY ) OF STATE, et al., ) )

Defendants and Respondents. ) _____________________________ )

On Appeal from the Superior Court in and for the County of Sacramento

Superior Court No. 34-2008-80000048-CU-WM-GDS The Honorable Michael P. Kenny

REAL PARTY IN INTEREST/RESPONDENT LEGISLATURE’S

BRIEF

DIANE F. BOYER-VINE Legislative Counsel State Bar No. 124182 ROBERT A. PRATT Principal Deputy Legislative Counsel State Bar No. 137704 MARIAN M. JOHNSTON Deputy Legislative Counsel State Bar No. 061643 Office of Legislative Counsel 925 L Street, Suite 900 Sacramento, California 95814 Telephone: (916) 341-8186 Facsimile: (916) 341-8395 Attorneys for Real Party in Interest/Respondent California State Legislature

TABLE OF CONTENTS INTRODUCTION ............................................................................................ 1 ARGUMENT .................................................................................................... 3 I THE APPEAL SHOULD BE DISMISSED AS MOOT......................... 3 II THE CALIFORNIA STATE LEGISLATURE POSSESSES ALL

LEGISLATIVE POWER NOT LIMITED BY THE STATE CONSTITUTION ................................................................................... 7

A. THE LEGISLATURE MAY LEGISLATE WHEREVER IT IS

NOT CONSTITUTIONALLY RESTRAINED .......................... 7 B. THE LEGISLATURE MAY SUPERSEDE PRIOR

STATUTES; NEW STATUTES CAN ALWAYS BE ENACTED ................................................................................... 8

C. SECTIONS 3 AND 4 OF ARTICLE II COMMIT THE

ELECTION PROCESS TO THE LEGISLATURE AND DO NOT RESTRICT IT FROM DETERMINING HOW TO PLACE LEGISLATIVE MEASURES ON THE BALLOT ..... 11

D. STATUTORILY SPECIFIED BALLOT LANGUAGE DOES

NOT INTERFERE WITH FAIR ELECTIONS ........................ 14 E. BOND MEASURES SUBMITTED BY THE LEGISLATURE

TO THE ELECTORS ARE NOT SUBJECT TO THE PROVISIONS GOVERNING INITIATIVES AND REFERENDA ............................................................................ 18

F. THE CONSTITUTION DOES NOT REQUIRE THAT ONLY

THE ATTORNEY GENERAL DRAFT BALLOT LANGUAGE .............................................................................. 22

i

ii

III THE RIGHT TO JUDICIAL REVIEW GUARANTEES THAT THE LEGISLATURE DOES NOT MISUSE ITS POWER TO DRAFT

ELECTIONS MATERIALS ................................................................ 28 A. JUDICIAL REVIEW ENSURES THAT BALLOT

LANGUAGE SPECIFIED BY STATUTE IS NOT FALSE OR MISLEADING ........................................................................... 28

B. THE LEGISLATURE MAY NOT UNILATERALLY

REPEAL THE AVAILABILITY OF JUDICIAL REVIEW .... 31 IV THE LEGISLATURE’S PRACTICE OF DRAFTING BALLOT

LANGUAGE IS NOT EXTRAORDINARY ...................................... 45 V NOTHING WARRANTS HEIGHTENED SCRUTINY OF

CHAPTER 267 OF THE STATUTES OF 2008 .................................. 47 CONCLUSION ............................................................................................... 49

TABLE OF AUTHORITIES

CASES Bertino v. Sanborn

(1934) 136 Cal.App. 247 ................................................................. 6

Boyd v. Jordan (1934) 1 Cal.2d 468....................................................................... 47

Bradley v. Voorsanger

(1904) 143 Cal. 214......................................................................... 6 Cadence Design Systems, Inc. v. Avant! Corp.

(2002) 29 Cal.4th 215...................................................................... 5 California School Boards Assn. v. State of California

(2009) 171 Cal.App.4th 1183.......................................................... 8 California Teachers Assn. v. Hayes

(1992) 5 Cal.App.4th 1513................................................ 36, 37, 38 Californians for an Open Primary v. McPherson

(2006) 38 Cal.4th 735.................................................................. 5, 6 Canaan v. Abdelnour

(1985) 40 Cal.3d 703..................................................................... 15 Castro v. State of California

(1970) 2 Cal.3d 223....................................................................... 15 Cinnamon Square Shopping Center v. Meadowlark Enterprises

(1994) 24 Cal.App.4th 1837............................................................ 5 City of Sacramento v. State of California

(1984) 156 Cal.App.3d 182........................................................... 22 Clark v. Jordan

(1936) 7 Cal.2d 248....................................................................... 48

iii

Collins v. Riley (1944) 24 Cal.2d 912..................................................................... 44

County of Los Angeles v. State of California

(1984) 153 Cal.App.3d 568............................................................. 9 Dimmick v. Dimmick

(1962) 58 Cal.2d 417....................................................................... 4 East Bay Municipal Utility Dist. v. Appellate Dept. of Superior Court

(1979) 23 Cal.3d 839..................................................................... 12 Environmental Protection Information Center, Inc. v. Maxxam Corp.

(1992) 4 Cal.App.4th 1373.............................................................. 4 Fair v. Hernandez

(1981) 116 Cal.App.3d 868........................................................... 15 Fletcher v. Comm. on Judicial Performance

(1998) 19 Cal.4th 865.................................................................... 23 Gould v. Grubb

(1975) 14 Cal.3d 661............................................. 12, 13, 14, 15, 48 Greene v. Marin County Flood Control and Water Cons. Dist.

(2009) 171 Cal.App.4th 1478........................................................ 15 Griset v. Fair Political Practices Com.

(1994) 8 Cal.4th 851...................................................................... 15 Hodges v. Superior Court

(1999) 21 Cal.4th 109.................................................................... 34 Huening v. Eu

(1991) 231 Cal.App.3d 766............................................... 32, 33, 42 Hull v. Rossi

(1993) 13 Cal.App.4th 1763.......................................................... 24

iv

In re Collie (1952) 38 Cal.2d 396, cert. denied sub nom. Collie v. Heinze (1953) 345 U.S. 1000 ..................................................................... 9

Knight v. Superior Court

(2005) 128 Cal.App.4th 14...................................................... 35, 36 Knoll v. Davidson

(1974) 12 Cal.3d 335..................................................................... 25 Lenahan v. City of Los Angeles

(1939) 14 Cal.2d 128....................................................................... 6 Lungren v. Superior Court

(1996) 48 Cal.App.4th 435................................................ 16, 26, 27 Methodist Hosp. v. Saylor

(1971) 5 Cal.3d 685....................................................................... 44 Mines v. Del Valle

(1927) 201 Cal. 273....................................................................... 16 Pacific Legal Foundation v. Brown

(1981) 29 Cal.3d 168..................................................................... 44 Pack v. Vartanian

(1965) 232 Cal.App.2d 466............................................................. 5 People v. Briceno

(2004) 34 Cal.4th 451.............................................................. 34, 35 People v. Cooper

(2002) 27 Cal.4th 38...................................................................... 35 People v. Gordon

(1944) 62 Cal.App.2d 268............................................................. 27 People v. Hayne

(1890) 83 Cal. 111......................................................................... 27

v

People v. Shearer

(1866) 30 Cal. 645......................................................................... 22 People v. 8,000 Punchboard Card Devices

(1983) 142 Cal.App.3d 618........................................................... 27 Robert L. v. Superior Court

(2003) 30 Cal.4th 894.................................................................... 34 San Francisco Forty-Niners v. Nishioka

(1999) 75 Cal.App.4th 637............................................................ 25 Songstad v. Superior Court

(2001) 93 Cal.App.4th 1202, 1205.............................. 22, 23, 24, 25 Stanson v. Mott

(1976) 17 Cal.3d 206............................................................... 16, 17 State Personnel Bd. v. Dept. of Personnel Admin.

(2005) 37 Cal.4th 512................................................................ 8, 12 Strauss v. Horton

(2009) 46 Cal.4th 364.................................................................... 26 Vargas v. City of Salinas

(2009) 46 Cal.4th 1........................................................................ 28 White v. Davis

(2003) 30 Cal.4th 528.................................................................... 14 Washburn v. City of Berkeley

(1987) 195 Cal.App.3d 578........................................................... 24

CALIFORNIA CONSTITUTION

California Constitution, Sec. 3, Art. II .... 11, 12, 13, 14, 21, 27, 38, 43 California Constitution, Sec. 4, Art. II ...................... 11, 12, 13, 14, 21

vi

California Constitution, Sec. 7, Art. II .............................................. 15 California Constitution, Sec. 8, Art. II ........................................ 19, 21 California Constitution, Sec. 9, Art. II .............................................. 19 California Constitution, Sec. 10, Art. II . 9, 11, 18, 19, 20, 27, 31, 34, 43 California Constitution, Sec. 11, Art. II ............................................ 19 California Constitution, Sec. 12, Art. II ...................................... 19, 21 California Constitution, Sec. 3, Art. III ............................................... 9 California Constitution, Sec. 1, Art. IV...................................... 7, 9, 37

California Constitution, Sec. 8, Art. IV.............................................. 18 California Constitution, Sec. 8.5, Art. IV........................................... 21 California Constitution, Sec. 10, Art. IV............................................ 18 California Constitution, Sec. 12, Art. IV............................................ 18 California Constitution, Art. XIIID ................................................... 15 California Constitution, Sec. 1, Art. XVI .................................... 13, 14 California Constitution, Sec. 2, Art. XVI ...................................... 1, 18 California Constitution, Sec. 1, Art. XVIII ....................................... 18 California Constitution, Sec. 2, Art. XVIII ....................................... 18

CALIFORNIA STATUTES

Ch. 7, Stats. 2009-10 (3rd Ex.) ....................................................... 3, 45

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Ch. 23, Stats. 1961.............................................................................. 40 Ch. 44, Stats. 2006................................................................................ 1 Ch. 71, Stats. 2004................................................................................ 1 Ch. 267, Stats. 2008..................................................................... passim Ch. 697, Stats. 2002.............................................................................. 1 Elections Code Section 3530.............................................................. 40 Elections Code Section 3531.............................................................. 40 Elections Code Section 3564.1..................................................... 32, 33 Elections Code Section 9003.............................................................. 43 Elections Code Section 9004.............................................................. 20 Elections Code Section 9040........................................................ 10, 21 Elections Code Section 9043.............................................................. 10 Elections Code Section 9044.............................................................. 10 Elections Code Section 9061.............................................................. 10 Elections Code Section 9087.............................................................. 24 Elections Code Section 9092.................................................. 27, 29, 29 Elections Code Section 9106.............................................................. 23 Elections Code Section 9160.............................................................. 24 Elections Code Section 9280.............................................................. 24 Elections Code Section 13115............................................................ 10

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Elections Code Section 13117............................................................ 10 Elections Code Section 13247............................................................ 10 Elections Code Section 13281................................................ 10, 20, 41 Elections Code Section 13282............................................................ 10 Evidence Code Section 451................................................................ 46 Evidence Code Section 459................................................................ 46 Family Code Section 297.5 .......................................................... 35, 36 Government Code Section 9105......................................................... 23 Government Code Section 12519....................................................... 22 Government Code Section 81001....................................................... 41 Government Code Section 81002....................................................... 41 Government Code Section 81012............................... 31, 32, 33, 34, 43 Government Code Section 88000....................................................... 32 Government Code Section 88001....................................................... 39 Government Code Section 88002................... 33, 39, 40, 41, 42, 44, 45 Government Code Section 88003........................................... 24, 41, 44 Government Code Section 88004....................................................... 42 Government Code Section 88005....................................................... 40 Government Code Section 88005.5.............................................. 41, 44 Government Code Section 88006............................... 27, 29, 31, 42, 45

ix

x

Government Code Section 88007....................................................... 42 Political Code Section 1197b ....................................................... 47, 48

BALLOT MEASURES

Proposition 1A

(November 4, 2008, Statewide General Election Ballot) ... 1, 10, 11

Proposition 22 (Statewide Primary Election) ........................................................ 36

Proposition 98

(Statewide Primary Election) .................................................. 36, 37

INTRODUCTION

Acts providing for the sale of state general obligation bonds must be

submitted to the electors of the State of California for their approval. Cal.

Const., Art. XVI, § 2, subd. (a). This appeal concerns the authority of the

Legislature to enact statutes establishing the procedures by which bond

measures are presented to the electors.

In order to fund a high-speed train system, the Legislature passed, by

a two-thirds vote of each house, and the Governor signed, a statute placing

Proposition 1A on the ballot for the November 4, 2008, statewide general

election. This measure, upon approval of the voters, permitted bonds to be

sold to finance this system. Ch. 267, Stats. 2008.1

In this statute, the Legislature provided specific language for the

ballot label and for the ballot title and summary for the bond measure, and

directed that this language appear on the ballot notwithstanding any other

provision of law. § 11. The statute also provided a public examination 1 All further unidentified references to sections will be to sections of Chapter 267 of the Statutes of 2008. A copy of this act is included in pages 12-28 of the Exhibits attached to Legislature’s Request for Judicial Notice (LRJN 12-28). The proposal for a high-speed train system was initiated in 2002, with a proposal for a bond measure to be included on the November 2, 2004, statewide general election ballot. Ch. 697, Stats. 2002. The vote was later continued to the November 6, 2006, statewide general election. Ch. 71, Stats. 2004. The election date was then continued again to the November 4, 2008, statewide general election. Ch 44, Stats. 2006. Finally, AB 3034, chaptered as Chapter 267 of the Statutes of 2008, specified how the bond measure was to appear on the November 4, 2008, statewide general election ballot. This is the act at issue in this case.

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period for the public to review the language and, if warranted, seek judicial

review.

Appellants used this opportunity to file a petition for writ of mandate

challenging one sentence in the ballot label and one sentence in the ballot

summary; they also challenged the authority of the Legislature to mandate

this language, naming the California State Legislature as real party in

interest. Clerk’s Transcript (CT) 1-9, 62-72. The Legislature opposed the

petition (CT 187-202), along with the respondent and the other real parties in

interest. CT 203-217.

The trial court entered judgment modifying, in one respect, the

language specified in the statute, but otherwise denying the petition. It

found that the Legislature acted lawfully in establishing the procedures for

the bond measure to be presented to the electors and in enacting a statute

providing specific language for the ballot label and for the ballot title and

summary. CT 227-231. The voters then approved this bond measure.

http://www.sos.ca.gov/elections/sov/2008_general/contents.htm.

This appeal solely involves the latter portion of the judgment,

concerning the constitutionality of the statute that directed how this one

bond measure would be presented to the electors. The appeal should be

dismissed as moot. Appellants asked for no relief other than a change in the

2

ballot pamphlet language. The election has occurred, and the bond measure

was approved. Chapter 267 of the Statutes of 2008 has no further effect.

Alternatively, the judgment should be affirmed. The Legislature chose

to replace various existing statutory provisions that would otherwise have

governed the submission of this measure to the electors, and to establish

alternative statutory procedures for this measure.2 In doing so, the

Legislature acted well within its constitutional authority.

ARGUMENT

I

THE APPEAL SHOULD BE DISMISSED AS MOOT

The election is over, and the bond measure has been approved by the

voters. http://www.sos.ca.gov/elections/sov/2008_general/contents.htm.

Chapter 267 of the Statutes of 2008 is therefore obsolete; it has no further

force or effect beyond the specific bond measure as approved at the 2 The timing of the enactment of measures to be placed on the ballot is frequently problematic, given the delay often arising from the need to attain a two-thirds vote consensus within each house of the Legislature for passage of a bond measure, and the logistical demands on the Secretary of State in preparing for an election (e.g., the public review period, the printing of materials, and the distribution of overseas ballots in time to receive them back by the date of the election). In light of these factors, the Legislature’s decision to forego the lengthy time period usually required to await draft ballot language from the Attorney General is understandable. For example, Chapter 267 of the Statutes of 2008 was enacted on August 26, 2008, LRJN 12, to be voted on in the November 4, 2008 election. Chapter 7 of the Statutes of 2009 of the 2009-10 Third Extraordinary Session was enacted on February 20, 2009, LRJN 1, for a special election on May 19, 2009.

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November 4, 2008, election.

Appellants recognized the limited effectiveness of the statute in

framing their prayer for relief, as the only remedy they requested was (1)

that the Secretary of State be ordered to request the Attorney General to draft

an alternative ballot label and ballot title and summary for the bond measure

and (2) that one sentence be removed from the ballot label and ballot

summary. CT 9. They requested no other relief, and they did not and are

not asking to have this Court invalidate the election or enjoin the issuance of

the bond. Appellants’ Opening Brief (AOB), p. 4.

Appellants now seek relief never requested below, as they ask this

Court to “prohibit[] the legislature from writing the impartial descriptions

and analyses of its own ballot measures.” AOB, p. 19. Appellants cite no

authority supporting their attempt to broaden their request for relief, and

case law establishes that relief may not be granted on appeal that exceeds the

relief requested in the trial court. “It is settled that points not raised in the

trial court will not be considered on appeal. [Citations.] This rule precludes

a party from asserting on appeal claims to relief not asserted in the trial

court.” Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422. This rule was

applied in Environmental Protection Information Center, Inc. v. Maxxam

Corp. (1992) 4 Cal.App.4th 1373, 1381, to hold that appellants who had

4

only pled a petition for writ of mandate were not entitled to declaratory relief

on appeal. See also Cinnamon Square Shopping Center v. Meadowlark

Enterprises (1994) 24 Cal.App.4th 1837, 1884; Pack v. Vartanian (1965)

232 Cal.App.2d 466, 475.

Appellants are apparently relying on cases such as Cadence Design

Systems, Inc. v. Avant! Corp. (2002) 29 Cal.4th 215, 218, fn.2, which

explains that courts may proceed to decide the issues in a moot case where

those issues are of continuing public interest and are likely to recur.

However, appellants admit they “are not asking to have the election

invalidated or issuance of the bond enjoined.” AOB, p. 4. Therefore, this

case is unlike Californians for an Open Primary v. McPherson (2006) 38

Cal.4th 735, in which the California Supreme Court held that an election

challenge was not moot. As that Court explained, because the appellants in

that case sought “invalidation of the two measures enacted by the voters, the

remedy issue that is presented remains alive and is not moot.” Id., at 742.

Here, on the other hand, because appellants are not seeking to

invalidate the election and prayed for no relief other than that the ballot

materials for the November election last year be changed, the case is moot.

Appellants are not entitled to judicial resolution of the diffuse range of

issues that they now seek to raise at the appellate level, nor does any aspect

5

of this matter addressed by the trial court warrant the Court’s acceptance of

those issues for consideration. As explained in Lenahan v. City of Los

Angeles (1939) 14 Cal.2d 128, 134, “the time of the court should not be

engaged in resolving abstract questions not directly affecting the rights of

the parties.” There, the court dismissed as moot an appeal from an action

seeking to enjoin an election that had already been held. See also Bradley v.

Voorsanger (1904) 143 Cal. 214, 216; Bertino v. Sanborn (1934) 136

Cal.App. 247, 247-248 (“Where abstract questions only are involved and the

issues have become moot as to the acts commanded to be performed, an

appellate court will not retain jurisdiction.”). “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.”

Californians for an Open Primary, 38 Cal.4th at 784 (Werdegar, J.,

concurring).

Because appellants’ petition only sought to amend the ballot materials

before the November election; because those materials, as amended by the

trial court, were distributed to the voters; because that election is now in the

6

past; and because appellants are not seeking to invalidate the results of that

election, this appeal should be dismissed as moot.

II

THE CALIFORNIA STATE LEGISLATURE POSSESSES ALL LEGISLATIVE POWER NOT LIMITED

BY THE STATE CONSTITUTION

A. THE LEGISLATURE MAY LEGISLATE WHEREVER IT IS NOT CONSTITUTIONALLY RESTRAINED

The legislative power of the state is vested in the Legislature, except

for the powers of initiative and referendum, which are reserved to the

people. Cal. Const., Art. IV, § 1.3 And, as explained in many cases, the

California Legislature has all legislative power not restricted by the

California Constitution, and all doubts as to the extent of the Legislature’s

power must be resolved in favor of the choices made by the Legislature.

Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. Two important consequences flow from this fact. First, the entire law-making authority of the state, except the people's right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly or by necessary implication denied to it by the Constitution. In other words, we do not look to the Constitution to determine whether the legislature is authorized to do an act, but only to see if it is prohibited. [¶] Secondly, all intendments favor the exercise of the Legislature's plenary authority ….

3 All further references to articles are to articles of the California Constitution.

7

State Personnel Bd. v. Dept. of Personnel Admin. (2005) 37 Cal.4th

512, 523 (internal quotation marks and citations omitted). See also

California School Boards Assn. v. State of California (2009) 171

Cal.App.4th 1183, 1206.

Thus, where there are no constitutional restrictions, the Legislature

has plenary power. Here, the Legislature enacted specific procedures

governing placing the high-speed train system bond measure before the

electors, and, as discussed below, nothing in the Constitution precluded the

Legislature from doing so.

The Legislature’s power to provide the ballot language by statute and

to otherwise establish the procedures for presenting the bond measure to the

electors must be respected.

B. THE LEGISLATURE MAY SUPERSEDE PRIOR STATUTES; NEW STATUTES CAN ALWAYS BE ENACTED Appellants complain because previously enacted statutes establishing

general procedures for submitting legislative measures to the electors were

superseded here. AOB, p. 12. But, the California Constitution does not

preclude the Legislature from choosing to supersede prior statutory

procedures and enacting a statute establishing different procedures

8

exclusively for this bond measure.4 This was within the Legislature’s

legislative power, which may be exercised solely by the Legislature, and not

by the courts. Art, III, § 3; Art. IV, § 1. A court may not, of course, order

the Legislature to adopt specific statutes, as this would violate the separation

of powers doctrine. Art. III, § 3.

In objecting to the Legislature’s decision to enact new procedures

superseding those previously adopted, appellants apparently fail to recognize

that “one legislative body cannot limit or restrict its own power or that of

subsequent Legislatures and that the act of one Legislature does not bind its

successors.” In re Collie (1952) 38 Cal.2d 396, 398, cert. den. sub nom.

Collie v. Heinze (1953) 345 U.S. 1000. See also County of Los Angeles v.

State of California (1984) 153 Cal.App.3d 568, 573 (“one legislature cannot

limit or restrict its own power or that of successor legislatures”).

The Legislature is authorized to enact new statutes that differ from

previously enacted statutes. This is precisely what the Legislature did in

enacting Chapter 267 of the Statutes of 2008. The Legislature decided to

establish a new procedure for this chapter to replace those previously

enacted and generally applicable to legislative measures submitted to the

4 The Legislature is restricted by subdivision (c) of Section 10 of Article II in the manner it may amend initiative statutes, but, as discussed below, that restriction does not apply here.

9

electors, and that decision must be respected.

Specifically, the Legislature decided:

• “[N]otwithstanding the requirements of Sections 9040, 9043, 9044, and 9061 of the Elections Code or any other provision of law,” the bond measure would be submitted to the electors at the November 4, 2008, general election, § 11, subd. (a); • “Notwithstanding Sections 13115 and 13117 of the Elections Code,” the measure would be placed on the ballot as Proposition 1A, § 11, subd. (b); • “Notwithstanding any other provision of law,” the ballot label would be as stated, § 11, subd. (c); • “Notwithstanding Sections 13247 and 13281 of the Elections Code,” the Attorney General could not change that language, except to include a financial impact summary, § 11, subd. (d); • “Notwithstanding any other provision of law,” the ballot title and summary would be as stated, §11, subd. (f)(1); • “Notwithstanding any other provision of law,” the Attorney General could not change that language, except to include a financial impact summary, § 11, subd. (f)(2); and • “Notwithstanding Section 13282 of the Elections Code or any other provision of law,” the public examination period and time to seek a writ of mandate would be 8 days, § 11, subd. (h).

These procedures were expressly enacted by Chapter 267 of the

Statutes of 2008 and superseded those previously established by statute, and

there is no claim that these new procedures were not followed.

Appellants argue that “the Legislature bent several rules” (AOB, p. 3),

but this gravely mischaracterizes the Legislature’s actions. The reality is

10

that the Legislature simply replaced old statutory rules with new statutory

rules governing the election procedures for Proposition 1A on the November

4, 2008, statewide ballot.

C. SECTIONS 3 AND 4 OF ARTICLE II COMMIT THE ELECTION PROCESS TO THE LEGISLATURE AND DO NOT RESTRICT IT FROM DETERMINING HOW TO PLACE LEGISLATIVE MEASURES ON THE BALLOT Appellants suggest that Sections 3 and 4 of Article II somehow

preclude the Legislature from establishing procedures for presenting

measures to the electors. AOB, p. 10. However, by their plain language,

these provisions fully entrust the supervision of elections to the Legislature,

as the Legislature is directed “to provide for … free elections,” Art. II, § 3,

and “prohibit improper practices that affect elections.” Art. II, § 4.

These sections confirm that, under the California Constitution, the

Legislature is entrusted with enacting statutes to govern election

procedures.5 And, as the California Supreme Court stated in describing the

plenary power of the Legislature, “[i]f there is any doubt as to the

Legislature's power to act in any given case, the doubt should be resolved in

favor of the Legislature's action. Such restrictions and limitations [imposed

by the Constitution] are to be construed strictly, and are not to be extended

5 Even as to initiative and referendum measures, the Legislature is constitutionally mandated to “provide the manner in which petitions shall be circulated, presented, and certified, and measures submitted to the electors.” Art. II, § 10, subd. (d).

11

to include matters not covered by the language used."' State Personnel Bd.,

37 Cal.4th at 523 (internal quotation marks and citations omitted).

Appellants cite no relevant authority supporting their position that

Sections 3 and 4 of Article II preclude the Legislature from enacting statutes

specifying ballot language for the measures it submits to the electors.

Indeed, the only reported decision discussing these constitutional provisions

appears to be East Bay Municipal Utility Dist. v. Appellate Dept. of Superior

Court (1979) 23 Cal.3d 839. There, the court rejected a claim that requiring

candidates to pay to have their statement of qualifications printed in the

ballot pamphlet violated the guarantee of “free elections” found in Section 3

of Article II. Id., at 845.6

Furthermore, one of the cases that appellants cite, though not relevant

to Sections 3 and 4 of Article II, recognizes that “legislative bodies retain

considerable discretion in formulating election procedures and devising

regulations for the form and content of ballots.” Gould v. Grubb (1975) 14

Cal.3d 661, 669. The court in Gould declined to mandate any particular

election procedure because “the regulation of electoral matters is largely a

legislative matter, and legislative bodies have broad discretion in

establishing election procedures, subject, of course, to constitutional 6 This decision also refutes appellants’ contention that the guarantee of “free elections” does not signify, among other things, without cost. AOB, p. 11.

12

restraints.” Id., at 676.

In any event, Gould did not address either Section 3 or Section 4 of

Article II. The issue in Gould was a city charter provision that placed

incumbents in the top ballot position, and this provision was held to violate

equal protection as “the city has demonstrated no compelling interest which

necessitates the provision's discriminatory classification scheme.” Gould, 14

Cal.3d at 664. Here, however, no discriminatory classification scheme is at

issue or even alleged.

Neither Section 3 nor Section 4 of Article II includes language

restricting the Legislature’s power to adopt procedures for presenting its

measures to the electors, and no restriction should be inferred. To the

contrary, these constitutional provisions specifically commit to the

Legislature, and its discretionary lawmaking authority, the power to

establish election procedures.

Although neither Section 3 nor Section 4 of Article II has relevance to

this matter, the California Constitution elsewhere does contain provisions

that expressly govern the manner in which general obligation bond measures

in particular are to be submitted to the voters. Cal. Const., Art. XVI, Sec. 1.7

7 Section 1 of Article XVI provides, in pertinent part, that“[f]ull publicity as to matters to be voted upon by the people is afforded by the setting out of the complete text of the proposed laws, together with the arguments for and against

13

The electoral procedures applied in the case of the bond measure in question

here, including those specified by Chapter 267 of the Statutes of 2008, fully

complied with these specific constitutional requirements.

Finally, as explained above, any doubt as to the extent of the

Legislature’s power to enact these election procedures must be resolved in

favor of the Legislature’s action, because “all intendments favor the exercise

of the Legislature’s plenary authority.” White v. Davis (2003) 30 Cal.4th

528, 539. Sections 3 and 4 of Article II do not limit the Legislature’s power

to decide how to place legislative measures before the voters.

D. STATUTORILY SPECIFIED BALLOT LANGUAGE DOES NOT INTERFERE WITH FAIR ELECTIONS

Appellants attempt to argue that the Legislature’s enactment of a

statute specifying ballot language is wholly incompatible with fair elections.

The cases on which appellants rely are simply not on point, as they involve

constitutional issues not remotely at issue here. Further, none of these cases

supports the invalidation of a statute respecting election procedures enacted

by a state legislature.

For example, in Gould, a voting procedure giving advantages to

them, in the ballot pamphlet mailed to each elector preceding the election at which they are submitted, and the only requirement for publication of such law shall be that it be set out at length in ballot pamphlets which the Secretary of State shall cause to be printed.” Art. XVI, § 1.

14

incumbents was found to violate the equal protection guarantee as a

discriminatory classification. Gould, 14 Cal.3d at 669. In Canaan v.

Abdelnour (1985) 40 Cal.3d 703, 724, limitations on write-in votes were

found to unconstitutionally restrict ballot access, in violation of equal

protection. Castro v. State of California (1970) 2 Cal.3d 223, 242, found an

equal protection violation in denying votes to non-English-speaking voters.

Griset v. Fair Political Practices Com. (1994) 8 Cal.4th 851, upheld the

constitutionality of a requirement that persons making mass mailings

identify themselves, rejecting a First Amendment challenge to such

disclosure.

In Fair v. Hernandez (1981) 116 Cal.App.3d 868, the issue was the

proper interpretation of a statute governing write-in ballots, and the court

determined which ballots should be counted to prevent “unfettered variety

[that] would undermine … the integrity of the voting process. Id., at 877.

And, finally, in Greene v. Marin County Flood Control and Water Cons.

Dist. (2009) 171 Cal.App.4th 1478, the court merely reconciled the

requirement that voting be secret (Art. II, § 7), with the requirement that

voters approve new local fees, Art. XIIID, in order to protect the voters’

“right to vote freely with the confidence that their votes will remain secret

…” Greene, 171 Cal.App.4th at 1486.

15

None of these issues exists in this case. Appellants appear to have

pulled random quotations extolling the right to vote from these cases,

without relating them to the context in which the statements appear.

The only arguably relevant case authority presented by appellants

involves Stanson v. Mott (1976) 17 Cal.3d 206, and its progeny, but, even

there, the case law does not support appellants’ claim that it is unlawful for

the Legislature to enact a statute providing the language to be used for the

ballot label and the ballot title and summary. The holding in Stanson applies

where a government agency, without specific statutory authorization, spends

public funds to influence the election process. Here, of course, not only is

there no expenditure of public funds other than that required to conduct the

election, but there is obviously statutory authorization. Indeed, appellants’

precise objection is that Chapter 267 of the Statutes of 2008 specified the

ballot language.

In Stanson, a state official, without statutory authorization, spent

public funds to promote the passage of a bond measure. Stanson, 17 Cal.3d

at 209. The California Supreme Court concluded that “at least in the

absence of clear and explicit legislative authorization, a public agency may

not expend public funds to promote a partisan position in an election

campaign.” Id., at 209-210. The court relied upon language in Mines v. Del

16

Valle (1927) 201 Cal. 273, a case involving public funds spent to promote a

municipal bond measure, again without legislative authority. Mines stated

that the expenditure “cannot be sustained unless the power to do so is given

to said board in clear and unmistakable language.” Id., at 287. The Stanson

court made it clear, however, that public funds could be used to provide the

public with information about measures submitted for public approval.

Stanson, at 221.

Thus, Stanson applies where public funds are being spent without

statutory authorization directly for partisan campaign purposes. That is not

the case here, where the ballot label and ballot title and summary merely

informed the voters of the content of the bond measure, subject to review

and modification by the trial court to ensure that these ballot materials

contained no false or misleading information. There was certainly no

expenditure of public funds urging a “yes” or “no” vote; the Legislature

simply provided truthful and accurate information to the voters, subject to

the same judicial review for false or misleading statements that would have

applied if the Attorney General, instead of the Legislature, had drafted the

language.

The ballot language specified by the Legislature in Chapter 267 of the

Statutes of 2008 is a fair presentation for purposes of educating the voters

17

regarding the effects of the ballot proposition. Unquestionably, the

Legislature favored the passage of the bond measure, as it was adopted, as

constitutionally required, by a two-thirds vote of each house, and it was also

approved by the Governor.8 However, the information provided to the

voters pursuant to Chapter 267 of the Statutes of 2008, as subjected to prior

judicial review, was neither false nor misleading, and enabled the voters to

make their own decision about the legislative proposal and whether or not to

support the bond measure. And, although appellants object to this measure,

the voters agreed with the Legislature and the Governor as to the need to

issue bonds to finance a high-speed train system.

E. BOND MEASURES SUBMITTED BY THE LEGISLATURE TO THE ELECTORS ARE NOT SUBJECT TO THE PROVISIONS GOVERNING INITIATIVES AND REFERENDA In most cases, legislation passed by the Legislature becomes effective

without voter approval. See Art. IV, §§ 8, 10, and 12. However, the

Constitution does require general obligation bond measures and a few other

categories of legislative acts to be presented to the electors.9 Initiative and

8 The legislative history of Chapter 267 of the Statutes of 2008 may be found at http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_3001-3050/ab_3034_bill_20080826_history.html. 9 In addition to bond measures (Art. XVI, § 2, subd. (a)), legislative proposals to amend or revise the California Constitution or to call a constitutional convention must also be submitted to the electors. Art. XVIII, §§ 1 and 2. Legislative

18

referendum measures, on the other hand, must always be adopted by the

electors to become effective. Art. II, §§ 10-12.

The California Constitution plainly differentiates between initiative

and referendum measures proposed by petitions and those measures enacted

by the Legislature that must be submitted to the electors, as it imposes

requirements on the process for voter approval of initiatives and referendum

measures that are not imposed on measures the Legislature must submit to

the electors. In particular, the California Constitution mandates the Attorney

General to prepare titles and summaries for initiative and referendum

petitions before these are circulated for signatures. Art. II, § 10, subd. (d).

There is no equivalent constitutional provision directing the Attorney

General to prepare titles and summaries for legislative measures to be

submitted to the electors. The California Constitution also establishes the

timing for initiative and referendum measures to be presented to the electors.

Art. II, § 8, subd. (c), and § 9, subd. (c). Again, there is no corresponding

constitutional provision for when legislative measures are to be submitted to

the voters.

Furthermore, even as to initiative and referendum measures, the

California Constitution does not mandate that the same titles and summaries proposals to amend or repeal an initiative statute must also be submitted to the electors, unless the initiative provides otherwise. Art. II, § 10, subd. (a).

19

that the Attorney General prepared prior to circulation of initiative and

referendum petitions appear in ballot materials. The requirement for the

Attorney General to prepare ballot labels and summaries for initiative and

referendum measures is purely statutory. Elec. Code §§ 9004, 13281.

Indeed, the Legislature is specifically mandated by the Constitution to

establish procedures by which initiative and referendum measures are

presented to the electors. Art. II, § 10, subd. (e).

So, although the California Constitution does establish the

requirement that titles and summaries for initiative and referendum petitions

are to be prepared by the Attorney General before these are circulated for

signatures, and establishes the timing for initiative and referendum measures

to be presented to the electors, it does not specify what is to be included in

ballot pamphlets even as to initiative and referendum measures and it says

nothing as to the procedures for seeking voter approval of legislative

measures.

Although there are no constitutional provisions regarding legislative

measures to be submitted to the electors, appellants argue that the

procedures applicable to initiative and referendum measures must also apply

to bond measures. AOB, pp. 5-7. As they note, the Legislature has enacted

statutes establishing procedures generally applicable to legislative measures

20

to be submitted to the electors, and these statutes sometimes track the

constitutional provisions for initiative and referendum measures. Compare,

for example, Art. II, § 8, subd. (c), with Elec. Code § 9040. But the

procedures for submitting legislative measures to the electors are purely

statutory, and thus may be changed by statute, as happened in Chapter 267

of the Statutes of 2008.

In addition, the Constitution specifically charges the Legislature with

the authority to provide for free elections and prohibit improper election

practices. Art II, §§ 3 and 4. With minor exceptions not relevant here, the

process for submitting legislative measures to the electors is purely statutory,

and not mandated by the Constitution.10 Because the California Legislature

has all legislative power not limited by the California Constitution, and the

Constitution is silent as to the process for obtaining voter approval of

legislative measures, the Legislature’s constitutional authority to enact

statutes governing the procedures for submitting a general obligation bond

measure to the electors must be respected.

10 A few constitutional restrictions do exist. For example, legislative measures proposed to the electors may not name any individual to hold office or any private corporation to perform any functions. Art. II, § 12. Legislative measures proposed to the electors may not include or exclude political subdivisions of the state based on the votes in that subdivision or specify that provisions become law based upon a specified percentage of votes. Art. IV, § 8.5. These provisions are all irrelevant to this case.

21

F. THE CONSTITUTION DOES NOT REQUIRE THAT ONLY THE ATTORNEY GENERAL DRAFT BALLOT LANGUAGE

Appellants assert that the electors need to have reliable information,

and then, without any supporting authority, leap to the conclusion that only

the Attorney General, who provides this information for initiatives and

referenda is qualified to provide this information for legislative measures.

AOB, pp. 5-6. They describe the Attorney General as “unbiased” and

“presumed to not take sides,” AOB, p. 6, relying on City of Sacramento v.

State of California (1984) 156 Cal.App.3d 182, and Songstad v. Superior

Court (2001) 93 Cal.App.4th 1202. Appellants cite no authority, and there

is none, for the proposition that the California Constitution assigns to the

Attorney General the authority to prepare the ballot label, or ballot title and

summary, for a bond measure the Legislature places on the ballot, to the

exclusion of the Legislature’s authority to specify the contents of those

documents by statute. Furthermore, neither of the cases cited by appellants

is on point.

City of Sacramento concerned a published opinion issued by the

Attorney General. City of Sacramento, 156 Cal.App.3d at 192. The

Attorney General is authorized by Government Code § 12519 to issue

opinions, and these opinions are “quasi-judicial.” People v. Shearer (1866)

30 Cal. 645, 653. Therefore, opinions issued by the Attorney General are

22

necessarily subject to an impartiality standard, as is the judiciary. Fletcher

v. Comm. on Judicial Performance (1998) 19 Cal.4th 865, 910.

Songstad did not even concern the Attorney General. Rather, it dealt

with a county-wide initiative measure, and the statutory requirement in

Government Code § 9105, subd. (a), that the county counsel prepare a ballot

title before circulation of the measure, with the title being “a true and

impartial statement of the purpose of the proposed measure” and that this

title “neither be an argument, nor be likely to create prejudice, for or against

the proposed measure.” Songstad, 93 Cal.App.4th at 1205. The actual

holding in Songstad was that an opponent of a measure had no right

equivalent to that of a measure’s proponent to file a pre-circulation challenge

to the county counsel language. Id., at 1211. Even so, if a proponent did

challenge the county counsel’s language, the judicial standard of review is

clear and convincing evidence that the language is false or misleading. Elec.

Code § 9106.

Other cases appellants cite to support their unfounded assertion that

the Attorney General, but not the Legislature, should be presumed to be

unbiased as a matter of law appear to confuse the impartial analysis prepared

for each state measure by the Legislative Analyst with the ballot label and

ballot title and summary prepared by either the Attorney General or, as in

23

this case, the Legislature. Under Elections Code § 9087 and Government

Code § 88003, the Legislative Analyst is to “prepare an impartial analysis of

the measure ….” As those sections provide:

The analysis shall be written in clear and concise terms, so as to be easily understood by the average voter, and shall avoid the use of technical terms wherever possible. The analysis may contain background information, including the effect of the measure on existing law and the effect of enacted legislation which will become effective if the measure is adopted, and shall generally set forth in an impartial manner the information the average voter needs to adequately understand the measure. Elections Code § 9087 and Government Code § 88003 were not

affected by Chapter 267 of the Statutes of 2008, and the Legislative

Analyst’s analysis was included in the ballot material for the high-

speed train system bond measure, (LRJN 32-33), along with an

overview of California’s bond debt. LRJN 36-37. Appellants did not

challenge this impartial analysis as false or misleading or name the

Legislative Analyst in their petition. CT 1-9.

Similarly, Elections Code § 9160, formerly § 3781, and Elections

Code § 9280, formerly § 5011, require county counsels and city attorneys to

prepare impartial analyses of county and city measures, respectively. Some

of the cases cited by appellant refer to these requirements for impartial

analyses. In Hull v. Rossi (1993) 13 Cal.App.4th 1763, 1768, the court

discussed “[t]he public's right to an accurate impartial analysis under

24

Elections Code section 3781, subdivision (b) ….” See also Songstad, 93

Cal.App.4th at 1205. Another case concerns local ballot arguments. See

Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578, 585. Another

concerns an initiative petition that itself included false and misleading

statements intended to mislead voters. San Francisco Forty-Niners v.

Nishioka (1999) 75 Cal.App.4th 637, 646-647. And, perhaps most

peculiarly, appellants cite a case addressing filing fees for candidates. In

Knoll v. Davidson (1974) 12 Cal.3d 335, 352, the court noted that “it seems

likely that candidates who have their statements of qualifications included in

the voter's pamphlet have a clear advantage over candidates who do not.”

The court declined, however to invalidate the fee, as payment was not, in

fact, a prerequisite for including a candidate’s statement of qualifications.

Ibid.

These cases simply do not support the contention that the Attorney

General, who is a state officer elected on a partisan basis, has the exclusive

constitutional authority to prepare each ballot label or ballot title and

summary. Nor do these cases otherwise address the constitutional validity

of the Legislature’s enactment of a statute specifying the language for a

ballot label and ballot title and summary. AOB, p 7. Moreover, as this

Court has recognized, the fact that the drafter of ballot language supports or

25

opposes the underlying measure does not mean that the language is therefore

biased. For example, when the Attorney General supports an initiative, this

does not mean that the ballot language drafted by the Attorney General is

entitled to any less deference on judicial review. As this Court explained in

Lungren v. Superior Court (1996) 48 Cal.App.4th 435, 440 n.1, “[a]s an

elected state constitutional officer, the Attorney General is not only entitled

to an opinion on matters of public importance, he is entitled to state that

opinion publicly. It is immaterial whether the Attorney General supports or

opposes Proposition 209.”

As an additional example of the Attorney General not being an

uninterested party in this respect, it may be noted that although the Attorney

General, in his official capacity, drafted the ballot label and ballot title and

summary for Proposition 8, an initiative measure submitted to the voters at

the November 4, 2008, statewide election, he also, again in his official

capacity, opposed the constitutionality of that initiative. See Strauss v.

Horton (2009) 46 Cal.4th 364.

In Lungren, opponents of Proposition 209, an initiative that the

Attorney General supported and that was to appear on the ballot for the

November 1966 statewide general election, challenged the Attorney

General’s failure to include ballot language indicating the measure would

26

prohibit affirmative action. This Court rejected the notion that the Attorney

General’s language should be entitled to less deference because he supported

the measure, and applied the “false or misleading” test set out in Elections

Code Section 9092 and Government Code Section 88006. Lungren, 48

Cal.App.4th at 439.

As explained above, the Legislature may exercise its constitutional

authority to legislate in any manner not “expressly or by necessary

implication” denied to it by the Constitution; any doubt in this respect is to

be resolved in favor of the Legislature’s authority, and any constitutional

provision that may limit that authority is to be strictly construed and “not to

be extended to include matters not covered by the language used.” People v.

Gordon (1944) 62 Cal.App.2d. 268, 271. See also People v. Hayne (1890)

83 Cal. 111, 115; People v. 8,000 Punchboard Card Devices (1983) 142

Cal.App.3d 618, 620. Further, the Constitution expressly assigns to the

Legislature both the authority and responsibility to “provide for … free

elections” and to “provide the manner in which … [initiative] measures [are]

submitted to the electors.” Art. II, §§ 3 and 10, subd. (e). Conversely,

Appellants have failed to identify any provision of the Constitution that

either assigns to the Attorney General the exclusive authority to prepare a

ballot label, or a ballot title and summary, for a general obligation bond

27

measure to be submitted to the electorate, or that denies to the Legislature

the authority to enact a statute setting forth the language for those ballot

materials.

III

THE RIGHT TO JUDICIAL REVIEW GUARANTEES THAT THE LEGISLATURE DOES NOT MISUSE ITS POWER

TO DRAFT ELECTIONS MATERIALS A. JUDICIAL REVIEW ENSURES THAT BALLOT LANGUAGE

SPECIFIED BY STATUTE IS NOT FALSE OR MISLEADING

Although appellants claim that Chapter 267 of the Statutes of 2008

interferes with the right to a fair election (AOB, pp. 10-15), appellants have

failed to show either that this measure resulted in any unfairness, or that the

abstract possibility of concerns regarding fairness of the ballot language in

Chapter 267 constitutionally bars the Legislature from enacting such a

statute.

The Legislature is clearly a proponent as to any legislative measure

that the California Constitution mandates must be submitted to the voters, as

it causes the measure to be placed on the ballot. Nevertheless, the California

Constitution does not restrict the Legislature in enacting procedures

governing these measures. Moreover, the fact that the Legislature has an

opinion as to the measure is of no legal consequence. “[T]he mere

circumstance that a public entity may be understood to have an opinion or

28

position regarding the merits of a ballot measure is not improper.” Vargas v.

City of Salinas (2009) 46 Cal.4th 1, 36.

Under California law, the contents of a ballot label and a ballot title

and summary, whether prepared by the Attorney General or, as here,

specified by statute, are governed by Elections Code Section 9092 and

Government Code Section 88006, which provide for judicial review of those

materials and authorize the courts to amend or delete any contents shown to

be false or misleading. So, as to any possible claim that the statutory

language specified for the ballot label or the ballot title and summary is false

or misleading, the remedy is judicial review of the language under the “false

or misleading” governing standard for judicial review set forth in Elections

Code Section 9092 and Government Code Section 88006.

It is important to recognize that even though the Legislature

superseded certain statutory procedures in Chapter 267 of the Statutes of

2008, it did not alter the requirement that the ballot language set forth in that

statute be subject to judicial review under the “false or misleading” standard,

and it did not challenge the authority of the trial court to apply that standard

to the language in that chapter. To the contrary, the Legislature specifically

provided in Chapter 267 of the Statutes of 2008 that any voter could petition

for a writ of mandate to seek judicial review of the ballot language. § 11 (i).

29

Appellants took advantage of this opportunity, and challenged the

language in Chapter 267 of the Statutes of 2008, arguing that two sentences

in this language were false or misleading. CT 6-9. In defending this

language in the trial court, the Legislature never contended that the statutory

language was not subject to judicial review; it merely argued that the

language was not false or misleading. CT 197-202.

The trial court, in fact, agreed with appellants in one respect and

ordered a modification to the ballot language, although it rejected appellants’

challenge of other language. CT 219, 221-222. The Legislature has not

sought review of this order or disputed the authority of the trial court to issue

a writ of mandate upon a finding of clear and convincing proof that the

language was false or misleading.11

The authority of the courts to apply the “false or misleading” standard

to ensure the integrity of ballot materials has served the people of California

well, and applies equally whether the ballot label and ballot title and

summary are drafted by the Attorney General or, as here, specified by

statute. Appellants have failed to show that Chapter 267 of the Statutes of

11 The Legislature does, however, object to appellants’ belated challenge on appeal as to language not challenged in their petition. Their petition challenged only two sentences in the ballot language. Compare AOB, p. 7-8, with CT 6-8, and RT 12:14-16. They have waived any right to object to any ballot language not challenged in their petition.

30

2008 represents a change to this long-standing system of judicial review or,

more, importantly, that the Legislature is somehow barred by the California

Constitution from enacting this statute.

B. THE LEGISLATURE MAY NOT UNILATERALLY REPEAL THE AVAILABILITY OF JUDICIAL REVIEW Not only has the Legislature not sought to derogate the authority of

the courts to review ballot materials for false or misleading language, it is

constitutionally precluded from doing so unilaterally. Government Code

Section 88006, containing that standard, was enacted by initiative measure,

as part of Proposition 9, the Political Reform Act of 1974 (PRA), approved

by the voters at the June 4, 1974, statewide primary election. The

Legislature may amend the PRA only to further its purposes, and then only

by specified procedures. Art. II, Sec. 10, subd. (c); Gov’t Code § 81012.

While appellants have not raised this contention, the Legislature

submits to the Court that the enactment of statutes such as Chapter 267 of

the Statutes of 2008 neither amends nor violates the PRA. Nothing in the

PRA prevents the Legislature from specifying, by statute, who is to draft the

ballot label and ballot title and summary that appear in the ballot pamphlet.

In this regard, the Legislature calls to the Court’s attention a decision

it reached nearly 20 years ago concerning a question as to whether a

subsequent law would “amend” an initiative statute, in this case the PRA. In

31

Huening v. Eu (1991) 231 Cal.App.3d 766, this Court invalidated former

Elections Code Section 3564.1, which provided that “[a] ballot argument or

a rebuttal argument which includes in its text the name or title of a person,

other than the author of the argument, who is represented as being for or

against a measure, shall not be accepted unless the argument is accompanied

by a signed consent of that person,” as an attempt to amend the PRA without

following the requirements set forth in Government Code Section 81012 for

amending the PRA. Huening, 231 Cal.App.3d at 779. In reaching this

conclusion, the Court stated that “Chapter 8 of the Political Reform Act

(Gov. Code, § 88000 et seq.) governs the content of a ballot pamphlet.” Id.,

at 777.

The case arose when opponents of a measure submitted a rebuttal

argument that included the name of a company without first obtaining the

consent of that company. The measure’s proponents filed an action to have

this language removed; they were successful at the trial court level, and the

challenged language was removed from the ballot pamphlet. The opponents

appealed, arguing that the statute violated the First Amendment of the

federal constitution and that it amended the PRA without complying with its

requirements for amendment. Huening, 231 Cal.App.3d at 769-770.

Two of the Justices concluded that this section did amend the PRA,

32

stating further that their “conclusion section 3564.1 is an amendment to the

Political Reform Act whose enactment was not in compliance with the

provisions of that act renders it unnecessary to consider opponents' other

contentions.” Huening, 231 Cal.App.3d at 770.12 The third Justice would

have invalidated the statute under the First Amendment and not found it to

amend or violate the PRA. Id., at 780-782 (Raye, J., concurring and

dissenting).

The Legislature raises this issue because Government Code Section

88002, subdivision (a)(2), in enumerating the components that the ballot

pamphlet is to include, contains a reference to “[t]he official summary

prepared by the Attorney General.” If this reference is construed as a

mandate in the PRA that only the Attorney General may prepare the ballot

summary, then Chapter 267 of the Statutes of 2008, and any other statute

that instead gives this responsibility to anyone other than the Attorney

General, amends the PRA, and must follow the requirements for amending

the PRA to be valid. Under the Constitution, the Legislature may amend

initiative statutes only “by another statute that become effective only when

approved by the electors unless the initiative statute permits amendment or

12 The position advanced by the Attorney General in that case was that “the Political Reform Act does not regulate the content of ballot arguments and Government Code section 81012 was never intended to apply so broadly.” Id., at 772.

33

repeal without their approval.” Art. II, § 10, subd. (c). The PRA provides

that the Legislature may amend the PRA, but only to further its purposes and

then only pursuant to specified procedures. Gov’t Code § 81012, subd. (a).

A determination of whether or not a law constitutes an amendment of

an initiative statute requires, initially, an assessment of the scope and effect

of the initiative statute. In recent years, the California Supreme Court and

the appellate courts of this state, including this Court, have uniformly based

that assessment of scope and effect upon the intent of the electorate in

approving the initiative.

Applying the same principles that govern construction of a statute

(Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900), courts have ruled,

in this respect, that the primary objective is to determine and give effect to

the underlying intent of the voters in approving the initiative. People v.

Briceno (2004) 34 Cal.4th 451, 459. It is also well established that a court

may not interpret an initiative measure “... in a way that the electorate did

not contemplate…” Hodges v. Superior Court (1999) 21 Cal.4th 109, 114.

In the interpretation of an initiative measure, “… the voters should get what

they enacted, not more and not less. ” Ibid. Also, the voters’ intent in

approving an initiative measure is determined in the context of the measure

34

in its entirety and the statutory framework in which it appears. Briceno, 34

Cal. 4th at 459.

For example, in People v. Cooper (2002) 27 Cal.4th 38, 44, the

California Supreme Court upheld a sentence based on a statute that limited

presentence conduct credits, even though the statute was enacted after the

passage of an initiative referred to as the Briggs Initiative, which increased

the sentences for murder. The Court agreed that the statute was not an

invalid amendment of the initiative, reasoning that the statute did not

“circumvent the intent of the electorate in adopting the Briggs Initiative.”

Id., at 48. Ibid. The Court did so even though the Briggs Initiative, unlike

the PRA, did not authorize the Legislature to amend its provisions.

As the Court explained, “because [the initiative statute] does not

specifically authorize or prohibit presentence conduct credits,” the award

and limitation of those credits was not an invalid amendment of the initiative

statute. Id., at 47 (italics in original). Furthermore, allowing presentence

conduct credits did “not appear to contravene the electorate’s intent.” Id., at

47, fn. 6.

This Court itself followed analogous reasoning in Knight v. Superior

Court (2005) 128 Cal.App.4th 14, where it rejected a claim that Family

Code Section 297.5, recognizing and granting rights to domestic

35

partnerships, was void as an amendment to Proposition 22, the defense of

marriage initiative, finding that the statute “does not add to, or take away

from, Proposition 22.” Knight, 128 Cal.App.4th at 25. Proposition 22,

unlike the PRA, permitted amendment only by the electors, but this Court

rejected the claim that Section 297.5 was an invalid amendment, finding that

Proposition 22 was “intended only to limit the status of marriage to

heterosexual couples and to prevent the recognition in California of

homosexual marriages … of other jurisdictions” and that it expressed no “…

intent to repeal … existing domestic partners laws or to limit the

Legislature’s authority to enact other legislation regulating such unions.” Id.,

at 18. This determination of whether a subsequent law amended Proposition

22, an initiative statute, was thus based not on whether there existed any

overlap between the subjects addressed by the initiative statute and the

subsequent law, but on whether the initiative statute expressed an intent to

govern the particular matter that the subsequent law sought to affect.

This Court applied similar reasoning in Calif. Teachers Assn. v. Hayes

(1992) 5 Cal.App.4th 1513, when it harmonized Proposition 98 with the

Legislature’s existing constitutional powers, and refused to invalidate a

statute that was alleged to violate Proposition 98. At issue in that case was a

statute enacted subsequent to the adoption of Proposition 98 that included

36

funding for child care services within the funding guarantees of Proposition

98. Id., at 1529. Proposition 98, like the PRA, provides that the Legislature

may amend it only to further its purposes. Id., at 1529-1530, 1543. In

rejecting plaintiffs’ claim, this Court explained that “nothing in Proposition

98 or any other provision of law either expressly or implicitly restricted the

Legislature from including [the California Department of Education's] direct

provision of child development services through contracts with private

agencies within that guarantee.” Id., at 1531.

The Court explained that it was “not here concerned with the

advisability or wisdom of the Legislature's decision. Under our form of

government, policymaking authority is vested in the Legislature and neither

arguments as to the wisdom of an enactment nor questions as to the

motivation of the Legislature can serve to invalidate particular legislation.”

Calif. Teachers Assn., 5 Cal.App.4th at 1529 (footnote omitted).

The Court further relied on the fact that the Legislature is

constitutionally mandated to provide free public education under Section 5

of Article IX. Calif. Teachers Assn., 5 Cal.App.4th at 1522. “The

Legislature's power over the public school system has been variously

described as exclusive, plenary, absolute, entire, and comprehensive, subject

only to constitutional constraints.” Id., at 1524.

37

Of course, the same is true of the Legislature’s power to provide for

elections. Art. II, § 3; Art. IV, Sec. 1.

And, the Court relied on the fundamental principle discussed above

that the Legislature has and may exercise any and all legislative powers not

expressly or by necessary implication denied it by the Constitution, and that

any doubts as to the Legislature’s power to act in a particular case are to be

resolved in favor of the Legislature’s authority. Calif. Teachers Assn., 5

Cal.App.4th at 1532. As the Court concluded:

The measure does not expressly restrict the Legislature's plenary authority nor does it grant to school districts exclusive control over education funds. Had such a result been intended there are any number of linguistic formulations which could have so specified with adequate clarity. As a court, we cannot impose limitations or restrictions upon the Legislature's prerogatives in the absence of language reasonably calculated to require such a result when subjected to strict construction.

Id., at 1534.

Under this recent reasoning by this Court and the California Supreme

Court, the issue is not simply whether a subsequent law addresses a subject

that is also touched upon by an initiative statute, but whether that subsequent

law substantively modifies any matter over which, pursuant to their approval

of the initiative statute, the voters intended to exercise control. In making

this determination, the courts have been guided by the principle that the

Legislature retains all authority not expressly restricted, and any doubts as to

38

the Legislature’s authority to act must be resolved in favor of its actions.

Consequently, in order to assess the scope and effect of the PRA in

this respect, this Court must initially determine what intent of the electorate

should be inferred from the existence of the reference in Government Code

Section 88002, subdivision (a)(ii), to the “official summary prepared by the

Attorney General.”

Government Code Section 88002, as added by the PRA, states, in

pertinent part, as follows:

88002. The ballot pamphlet shall contain as to each state measure to be voted upon, the following in the order set forth in this section:

(a) Upon the top portion of the first page and not exceeding one-third of the page shall appear:

(i) The identification of the measure by number and title. (ii) The official summary prepared by the Attorney General. (iii) The total number of votes cast for and against the measure in

both the State Senate and Assembly if the measure was passed by the Legislature.

Government Code Section 88002 is one of several related sections

added by the PRA that address the ballot pamphlet in a relatively narrow

way. The PRA specifies that the pamphlet must include the text of the

proposed measure as well as the provisions to be repealed or revised, and the

arguments for and against each measure (Gov’t Code § 88001), it establishes

the order in which material is to appear, including where on each page

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certain contents were to be located (Gov’t Code § 88002), and it sets forth

the printing specifications for the pamphlet (Gov’t Code § 88005).

It is clear from this context that the purpose of Section 88002 is

merely to identify the related materials for each state measure that are to be

placed in the ballot pamphlet and to provide direction for their placement

within the ballot pamphlet.

Given this purpose of Government Code Section 88002, it follows

that the provision of that section that refers to the “official summary

prepared by the Attorney General” was intended merely to identify the

document as an element of the ballot pamphlet, describing that document by

reference to the then-existing statutory scheme. The Attorney General was,

at the time the PRA was adopted, the official statutorily assigned the duty of

preparing the summary. See former Elec. Code §§ 3530 and 3531; Ch. 23,

Stats. 1961. The ballot summary was therefore described in the PRA with

reference to the statute in effect at that time, and the reference to the

Attorney General in this context was merely descriptive and explanatory.

Nothing in the PRA supports the inference that this wording instead was

meant to convey to the voters the separate purpose of requiring that only the

Attorney General could lawfully exercise this function.

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To the contrary, when the PRA intends to mandate a particular official

or office to carry out a specific duty, it expressly so states. For example, in

Government Code Section 88003, the Legislative Analyst is directed to

prepare an impartial analysis of each measure. And, in Government Code

Section 88005.5, the Legislative Counsel is directed to prepare and

proofread the texts of all measures. However, there is no similar provision in

the PRA directing the Attorney General to prepare the ballot summary.

There is also no specification as to who is to prepare the ballot title, as the

PRA merely directs that the ballot pamphlet include the title of each

measure. Gov’t Code § 88002, subd. (a)(1).13

The PRA’s concern with the statewide ballot pamphlet is with

promoting full disclosure to voters and making the ballot pamphlet “a useful

document so that voters will not be entirely dependent on paid advertising

for information regarding state measures.” Gov’t Code § 81002, subd. (d).

Among the findings and declarations supporting the PRA was the fact that,

at that time, “the ballot pamphlet mailed to the voters by the state is difficult

to read and almost impossible for a layman to understand.” Gov’t Code

§ 81001, subd. (g). And, as discussed above, the PRA guarantees judicial

13 The ballot label is not even mentioned in the PRA; only Elections Code Section 13281 provides for the Attorney General to draft the ballot label.

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review to ensure that the information in the ballot pamphlet is not false or

misleading. Gov’t Code § 88006.

But, it strains credulity to conclude that the language in Government

Code Section 88002, in setting forth the contents of the ballot pamphlet and

directing their specific placement within the ballot pamphlet, thereby

conveyed to the voters the separate purpose of governing the manner in

which those contents are to be prepared. As characterized by this Court in

Huening, “Government Code sections 88002 and 88004 set forth the order

of information to be included in the pamphlet.” Huening, 231 Cal.App.3d at

777. Similarly, the concurrence in Huening recognized that, “[w]hile the

Political Reform Act added provisions to the Government Code relating to

the statewide ballot pamphlet, the provisions could fairly be characterized as

innocuous.” Id., at 780 (Raye, J., concurring).

The PRA plainly did not convey to the voters the intent to otherwise

freeze the contents of the ballot pamphlet or, except as expressly provided

by the PRA as to the Legislative Analyst and the Legislative Counsel, to

govern the manner in which those contents are to be prepared. To the

contrary, it provides that “the Legislature may without restriction amend this

chapter to add to the ballot pamphlet … any other information.” Gov’t Code

§ 88007. And, the constitutional authority of the Legislature to “provide the

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manner in which … measures [are] submitted to the electors,” found in

Section 10, subdivision (e) of Article II, is not affected. While this specific

constitutional authorization refers to initiative and referendum measures, the

Legislature is also generally charged, as previously explained, with the duty

to “provide … free elections” Art. II, § 3. Both of these constitutional

mandates would, sub silencio, be subjected to unintended restriction if the

PRA were interpreted to remove from the Legislature the power to

determine election procedures that are unrelated to the purposes of the PRA.

In addition, if the PRA were construed to govern not only the content

of the ballot pamphlet, but, also, who must draft each part of the pamphlet,

this would create additional unintended mischief. Under existing law,

Elections Code Section 9003 provides:

In the event that the Attorney General is a proponent of a proposed measure, the title and summary of the chief purpose and points of the proposed measure, including an estimate or opinion on the financial impact of the measure, shall be prepared by the Legislative Counsel, and the other duties of the Attorney General specified in this chapter with respect to the title and summary and an estimate of the financial effect of the measure shall be performed by the Legislative Counsel.

This provision, enacted in 1991 as former Elections Code Section 3502.05,

Chapter 1042 of the Statutes of 1991, and amended by Chapter 920 of the

Statutes of 1994, is not included in the PRA and was not enacted pursuant to

Government Code Section 81012, subd. (a). It would likely be invalid if the

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PRA were deemed to control both the content of the ballot pamphlet and the

authorship of that content.

The purpose of Government Code Section 88002 in referencing the

summary prepared by the Attorney General was simply to identify that

document in the context of existing law, in accordance with the objective of

that section to direct, as to each state ballot measure, what information is to

be placed in the ballot pamphlet and where in the pamphlet it is to be placed.

As distinguished from the nearby provisions of the PRA that expressly

assign responsibilities to the Legislative Analyst and the Legislative Counsel

with regard to preparing information for the ballot pamphlet (Gov’t Code §§

88003, 88005.5), nothing in the wording or context of Government Code

Section 88002 communicated to the voters the purpose of directing the

Attorney General in the performance of similar responsibilities.

Finally, “[i]f there is any doubt as to the Legislature's power to act in

any given case, the doubt should be resolved in favor of the Legislature's

action. Such restrictions and limitations [imposed by the Constitution] are to

be construed strictly, and are not to be extended to include matters not

covered by the language used." Methodist Hosp. v. Saylor (1971) 5 Cal.3d

685, 691, quoting Collins v. Riley (1944) 24 Cal.2d 912, 916; see also

Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180.

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Applying here the principles in the case law discussed above, the

voters’ intent with regard to Government Code Section 88002, and thus the

scope and effect of the PRA in this respect, cannot fairly be said to include

the issue of authorship of the ballot title or summary. It necessarily follows

from that result that the provisions of Chapter 267 of the Statutes of 2008

specifying the contents of the ballot label and ballot title and summary do

not amend the PRA.14

IV

THE LEGISLATURE’S PRACTICE OF DRAFTING BALLOT LANGUAGE IS NOT EXTRAORDINARY

Appellants’ claim that this decision by the Legislature to amend the

effect of existing statutes, and establish new procedures for submitting this

measure to the voters, is “unprecedented” (AOB, p. 2) is equally

unwarranted, as this is a practice the Legislature has employed and continues

to employ in appropriate cases.

For example, in Chapter 7 of the Statutes of 2009 of the 2009-10

Third Extraordinary Session, the Legislature placed six measures before the

electors at the May 19, 2009, statewide special election, and one measure at

14 By contrast, as noted above, a statute that sought to supersede the authority granted by Government Code Section 88006 to the courts to determine whether particular ballot pamphlet text is false or misleading would substantively modify a matter within the intended scope and effect of the PRA, and thus constitute an amendment to that act.

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the June 8, 2010, statewide primary election.15 For each of these measures,

the Legislature provided that, notwithstanding existing law, the ballot labels

and ballot titles and summary would be as stated in the bill. See Sections 2

through 9 of Chapter 7 of the Statutes of 2009 of the 2009-10 Third

Extraordinary Session, LRJN 2-10. Any concern that the Legislature’s

specification of ballot language would unduly influence the electorate or

somehow lead to unfair elections is dispelled by the fact that the electors in

fact rejected five of the six measures on the May 19 ballot.16

The decision to amend, by statute, existing provisions of law and

enact procedures specifically governing the submission of the ballot measure

contained in Chapter 267 of the Statutes of 2008, including specifying

language for the ballot label and the ballot title and summary, is thus not

without precedent, and appellants have failed to meet their burden of

showing this practice to be an invalid exercise of the Legislature’s

constitutional authority.

15 Judicial notice of this bill is separately requested and is appropriate. Evid. Code §§ 451 (a) and 459 (a). 16 See http://vote.sos.ca.gov/returns/props/map1A.htm; http://vote.sos.ca.gov/returns/props/map1B.htm; http://vote.sos.ca.gov/returns/props/map1C.htm; http://vote.sos.ca.gov/returns/props/map1D.htm; http://vote.sos.ca.gov/returns/props/map1E.htm; and http://vote.sos.ca.gov/returns/props/map1F.htm.

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V

NOTHING WARRANTS HEIGHTENED SCRUTINY OF CHAPTER 267 OF THE STATUTES OF 2008

Finally, appellants suggest that if the Legislature is permitted to enact

a statute specifying a ballot label, or ballot title and summary, for a

legislative measure, heightened scrutiny must apply. They rely on outdated

and irrelevant case law concerning the time period when initiative

proponents drafted their own short title before a measure was circulated for

signature.

In Boyd v. Jordan (1934) 1 Cal.2d 468, 472, for example, the Court

invalidated a proponent’s title for a measure to raise taxes where the title

made no mention of the tax, saying:

The petition before us asks that an amendment to the Constitution be submitted to the people, which amendment has for its sole purpose the raising of revenue for the support of the state government. The short title used in this petition makes no reference to a tax or to the fact that the proposed amendment is a revenue measure. We think it is clear that the short title neither shows the nature of the petition, nor does it show the subject to which it relates. There is nothing in this short title which informed the elector who was asked to sign it that the proposed measure provided for the levy of any tax whatever.

Boyd made no mention of “heightened scrutiny.” To the contrary, the Court

stated that the title “does not, in our opinion, amount to even a substantial

compliance with the requirements of section 1197b of the Political Code.”

Id., at 474-475.

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Clark v. Jordan (1936) 7 Cal.2d 248, similarly concerned an initiative

title found to be invalid under former Political Code Section 1197b. As the

Court explained, “[t]he ‘short title’ … totally fails, directly or indirectly,

expressly or impliedly, to indicate that the proposal is intended to work this

major and natural change in the existing method of taxation -- in fact the title

fails to disclose that any new taxes of any kind are to be imposed.” Id., at

251. Thus, the title was held to be “definitely misleading.” Id., at 252.

Again, there was no mention of heightened scrutiny, just that the statute

should be enforced. Ibid.

Gould did speak of a “standard of ‘close scrutiny,’” but, as explained

above, this was in the context of reviewing an equal protection challenge to

an election procedure involving a discriminatory classification. The law at

issue in Gould clearly created two unequal classes of candidates –

incumbents and all others. The case came to the Court only after the

plaintiffs had made an evidentiary showing that the procedure produced a

substantial advantage for the favored candidate. Gould, 14 Cal.3d at 665. It

was in this context, where a challenger had demonstrated that the procedure

clearly favored one set of candidates over another, that the Court called for

“close scrutiny.” Appellants have neither raised nor demonstrated any such

equal protection concerns as to Chapter 267 of the Statutes of 2008, and

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have proffered no basis in law to support their contention that heightened

scrutiny should be applied.

CONCLUSION

Because the California Legislature has all legislative power not

restricted by the California Constitution, and because the Constitution does

not specify who is to prepare ballot labels or ballot titles and summaries for

measures the Legislature submits to the voters, the Legislature acted within

its authority in placing within Chapter 267 of the Statutes of 2008 the

specific language to be included in the ballot label and ballot title and

summary. The Legislature acted within its constitutional authority when, by

two-thirds vote of each house, and joined by the Governor, it caused this

measure to be placed on the ballot, and appellants have made no showing of

the constitutional basis requisite to support its contention that the Legislature

cannot specify ballot language by statute. And, finally, the recognition,

pursuant to well-established judicial precedent, that the California

Constitution imposes no prohibition upon the enactment of Chapter 267 of

the Statutes of 2008 cannot be said to adversely affect the fairness of the

election process, which continues to be protected by the availability of

judicial review for false or misleading statements.

The court below correctly concluded that appellants’ petition should

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be denied insofar as it challenged this legislative decision, and this appeal

should be dismissed as moot. Alternatively, the judgment should be

affirmed.

Date: July 6,2009 Respectfully submitted, Diane F. Boyer-Vine Legislative Counsel By: Marian M. Johnston Deputy Legislative Counsel Attorneys for Real Party in Interest/ Respondent Legislature of California

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WORD COUNT CERTIFICATION

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computer used to produce this brief, is 11,381

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PROOF OF SERVICE (Court of Appeal)

C ASE NAME: Howard Jarvis Taxpayers Assn. v. Bowen

CASE NUMBER: C060441 I, Daniel Dizon, declare: I am employed in the County of Sacramento, California. I am over the age of 18 years, and not a party to the within action. My business address is 925 L Street, Sacramento, California 95814. I am readily familiar with my employer’s business practice for collection and processing of correspondence for UPS, U.S. Mail, Fax Transmission and/or Personal Service.

On July 6, 2009, I caused the following documents to be served:

REAL PARTY IN INTEREST/RESPONDENT LEGISLATURE’S BRIEF on the parties listed as follows: X by placing a true copy thereof enclosed in a sealed

envelope with postage thereon fully prepaid, in the United States mail.

TIMOTHY A. BITTLE Howard Jarvis Taxpayers Association 921 Eleventh Street, Suite 1201 Sacramento, CA 95814 Attorney for Appellants

ROSS C. MOODY Deputy Attorney General Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA, 94102-7004

I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 6, 2009, at Sacramento, California. Daniel Dizon