Docket No. S126780
Californians for Open Primary v. McPherson
Filed 5/25/06
IN THE SUPREME COURT OF CALIFORNIA
CALIFORNIANS FOR AN OPEN
PRIMARY et al.,
Petitioners,
S126780
v.
BRUCE McPHERSON,
Ct. App. 3 C047231
as Secretary of State, etc.,
Respondent;
CALIFORNIA LEGISLATURE,
Real Party in Interest.
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.
1
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 changes in a single measure violates article XVIII, section 1. In addressing
that question, the Court of Appeal followed a minority rule that recently was
reinvigorated by Armatta v. Kitzhaber (Or. 1998) 959 P.2d 49 (Armatta) — a decision in
which the Oregon Supreme Court construed its state’s separate-vote provision as
establishing a test different from and stricter than the traditional test employed by courts
under a related constitutional provision also found in most state constitutions — the
“single subject rule” (see Cal. Const., art. II, § 8, subd. (d) & art. IV, § 9). Unlike the
Oregon court and a few other courts that have followed Armatta under their respective
state constitutions, we find no basis in the history of the California Constitution for such a
conclusion, and hence we shall follow the approach that is, and has been, the majority
rule for nearly 130 years: the separate-vote provision should be construed consistently
with its kindred provision, the single subject provision.
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
2
ordering bifurcation, we find it unnecessary and inappropriate to invalidate either of these
separately submitted and approved constitutional amendments.
I
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.1 In an apparent response to that measure, both houses of the Legislature
passed by a two-thirds vote 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) for submission to the voters on the November 2004 ballot.
As adopted, Resolution 103 proposed, in a single measure, two changes to the state
Constitution.
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 article II of the California Constitution by adding
section 5, subdivision (b), which provided that a political party’s top votegetter in a
primary election must be permitted to run in the ensuing general election.2 The second
change set forth in Resolution 103 concerned state property and proposed to amend
1
Specifically, the measure proposed to allow the electorate to vote for candidates
for state and federal elected offices (except for President and Vice-President) on a
primary election ballot regardless of the party registration of the candidates or voters.
Pursuant to the measure, the two candidates receiving the greatest number of votes,
regardless of their party, then would be listed on the general election ballot. (Ballot
Pamp., Gen. Elec. (Nov. 2, 2004) text of Prop. 62, pp. 83-102.)
2
Resolution 103 stated: “A political party that participated in a primary election for
a partisan office has the right to participate in the general election for that office and shall
not be denied the ability to place on the general election ballot the candidate who
received, at the primary election, the highest vote among that party’s candidates.” (Sen.
Const. Amend. No. 18, Stats. 2004 (2003-2004 Reg. Sess.) res. ch. 103, pt. 1st.)
3
article III of the California Constitution by adding a new section 9 to provide a means for
the state to pay bond obligations.3
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, 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
3
Resolution 103 stated: “The proceeds from the sale of surplus state property
occurring on or after the effective date of this section, and any proceeds from the
previous sale of surplus state property that have not been expended or encumbered as of
that date, shall be used to pay the principal and interest on bonds issued pursuant to the
Economic Recovery Bond Act authorized at the March 2, 2004, statewide primary
election. Once the principal and interest on those bonds are fully paid, the proceeds from
the sale of surplus state property shall be deposited into the Special Fund for Economic
Uncertainties, or any successor fund. For purposes of this section, surplus state property
does not include property purchased with revenues described in Article XIX or any other
special fund moneys.” (Sen. Const. Amend. No. 18, Stats. 2004 (2003-2004 Reg. Sess.),
res. ch. 103, pt. 2d.) Californians for an Open Primary asserts in its answer brief: “By
accelerating the bond repayment, this second provision made [Resolution 103] more
attractive to voters by making it appear to save them millions of dollars.”
4
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 majority erred in
deciding, as a remedy for the separate-vote violation, that the measure should be
bifurcated and presented on the ballot as two separate measures; the proper remedy,
petitioners asserted, instead was an order barring the measure from appearing on the
ballot, and hence petitioners requested a stay of the Court of Appeal’s bifurcation order.
The Legislature’s petition for review, by contrast, disagreed with both (1) the Court of
Appeal’s separate-vote-provision analysis and conclusion, and (2) the Court of Appeal
majority’s bifurcation remedy, and further argued that the request for a stay should be
denied “and review of the remedy should occur only in conjunction with review on the
merits.” The Legislature argued for an “approach that truly aids this Court’s
jurisdiction,” namely, that “this Court’s review proceed in an orderly manner that does
not prejudge the merits, that fairly balances the interests of the parties and that protects
the people’s rights in the approaching election. To that end, given the exigencies of the
case, the Legislature acquiesces in the remedy ordered by the Court of Appeal as it
applies to the November election and asks that this Court leave that order in place while it
reviews the case.”
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
5
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.4
At the November 2004 election, the voters rejected Proposition 62 and enacted
both Propositions 60 and 60A.5
4
We issued the following orders: “Petitions for review GRANTED. [¶] At this
preliminary point in the proceedings before this court, 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.
Nonetheless, in light of (1) the novelty and difficulty of the constitutional issues
presented and the importance of ensuring that our decision is rendered after full and
adequate briefing, oral argument and deliberation, (2) the imminence of the deadline for
submitting the Voter Information Guide for the November 2004 election to the State
Printer, and (3) the concerns expressed by the Secretary of State in a letter to this court
filed on his behalf by the Attorney General on August 6, 2004, we 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. Accordingly, the request for a
stay of the Court of Appeal’s placement order, which request was included in the petition
for review of Californians for an Open Primary and Nick Tobey, filed August 3, 2004, is
denied.” This portion of the order was signed by Chief Justice George and Justices
Kennard, Baxter, Chin, and Moreno.
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.
5
California Secretary of State, Statement of the Vote, November 2, 2004, General
Presidential Election, Statewide Measures, available at
(footnote continued on following page)
6
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.
II
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.)6 Although this provision (hereafter sometimes referred to
(footnote continued from preceding page)
http://www.ss.ca.gov/elections/sov/2004_general/formatted_ballot_measure...
(as of May 25, 2006).
6
The next three sections of article XVIII address related matters. Section 2
concerns revision by a Constitutional Convention. It provides: “The Legislature by
rollcall vote entered in the journal, two-thirds of the membership of each house
concurring, may submit at a general election the question whether to call a convention to
(footnote continued on following page)
7
as the separate-vote provision) ― or one essentially identical to it ― has existed in this
article since it was added to our Constitution in 1879, no California decision has defined
the scope of the provision.
A
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 actually
guarantees that however the Legislature deems it appropriate to combine or separate
proposed changes, those changes will be submitted to the voters in the chosen manner.
Specifically, the Legislature asserts that the word “amendment” in the second sentence of
article XVIII, section 1 “has always been” construed to “mean[] a Senate Constitutional
Amendment . . . or an Assembly Constitutional Amendment, with the resulting assurance
that when more than one [Senate Constitutional Amendment] or [Assembly
Constitutional Amendment] appears on the same ballot each such legislative
constitutional amendment will be prepared and submitted so that it ‘can be voted on
(footnote continued from preceding page)
revise the Constitution. If the majority vote yes on that question, within 6 months the
Legislature shall provide for the convention. Delegates to a constitutional convention
shall be voters elected from districts as nearly equal in population as may be practicable.”
(Cal. Const., art. XVIII, § 2.) Section 3 of article XVIII of the Constitution simply
confirms what already is stated in the state Constitution, article II, section 8, subdivision
(b), by providing: “The electors may amend the Constitution by initiative.” Section 4
specifies, among other things, the effective date of amendments or revisions. It provides:
“A proposed amendment or revision shall be submitted to the electors and if approved by
a majority of votes thereon takes effect the day after the election unless the measure
provides otherwise. If provisions of 2 or more measures approved at the same election
conflict, those of the measure receiving the highest affirmative vote shall prevail.” (Id.,
art. XVIII, § 4.)
8
separately.’ ” The Legislature concludes: “Pursuant to this . . . view of [article XVIII,]
section 1, the Legislature, by two-thirds vote of each house, is free to combine disparate
substantive changes within a single legislative constitutional amendment for submission
to the people. . . . The ‘separate vote’ requirement guarantees that neither the Executive
[that is, the Secretary of State] nor succeeding legislative majorities may interfere with
these determinations.” (Italics added.) In other words, as Californians for an Open
Primary observes, the Legislature views the separate-vote provision as not a limitation
upon itself, but instead as a restraint upon hypothetical “renegade Secretaries of State”
who might take it upon themselves either to combine separate measures that the
Legislature has determined should be submitted to the voters separately, or to separate
measures that the Legislature has determined should be submitted to the voters as a
package.
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.
1
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.
9
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 that the drafters or the electorate in 1879 or thereafter ever so intended, or that
they even contemplated the construction that the Legislature now places upon the
provision.7
2
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),8 we next review the history of California’s
7
In another respect we find the language used in the provision to be at odds with the
Legislature’s interpretation. The provision’s use of the word “submitted” (“[e]ach
amendment shall be so prepared and submitted that it can be voted on separately” (art.
XVIII, § 1)) seems most naturally to refer to the Legislature, and not to an entity such as
the Secretary of State. Even though the Legislature does not itself physically “submit”
anything to the voters, section 2 of the same article states that “the Legislature . . . may
submit” (id., at § 2) to the voters a call for a constitutional convention — thereby
demonstrating that, insofar as this article of the Constitution is concerned, the word
“submit” must be understood to cover the general process of placing a legislative
proposal before the voters.
8
Justice Landau’s article criticizes or sets forth cautions regarding the following
practices, among others: (1) reliance upon the drafters’ “original intent” in order to
determine what a given provision means today; (2) the problem of generalization — that
is, reasoning from what is known of the drafters’ intent, to resolve a matter beyond that
(footnote continued on following page)
10
separate-vote provision. Former article X of the 1849 Constitution set forth the
procedures for the Legislature to propose one or more amendments to the Constitution
(id., § 1), or to revise the entire Constitution (id., § 2). Former article X, section 1
allowed the Legislature to propose a constitutional amendment based upon a majority
vote of both houses of two successive legislative sessions, but it placed no limitation
upon the manner in which the submission was to be made to the electorate.9 Indeed, the
former provision did the opposite: it made it the “duty of the Legislature” to “to submit
such proposed amendment or amendments to the people, in such manner, and at such
time as the Legislature shall prescribe.” (Cal. Const. of 1849, art. X, § 1, italics added.)
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 most jurisdictions, in favor of a provision apparently
(footnote continued from preceding page)
fairly contemplated by the drafters; (3) selective reliance upon history to explain or
justify a conclusion; (4) inferring drafters’ intent from the absence of debate or
discussion; (5) inferring meaning of a clause borrowed from another jurisdiction from the
other jurisdiction’s subsequent interpretation of that clause; and (6) failing to recognize
that the understanding and perception of history is in part a function of the availability of
source materials.
9
Section 1 of the former article provided in pertinent part: “Any amendment or
amendments to this Constitution may be proposed in the Senate or Assembly; and if the
same shall be agreed to by a majority of the members elected to each of the two Houses,
such proposed amendment or amendments shall be entered on their journals, with the
yeas and nays taken thereon, and referred to the Legislature then next to be chosen, and
shall be published for three months next preceding the time of making such choice. And
if in the Legislature next chosen as aforesaid, such proposed amendment or amendments
shall be agreed to by a majority of all the members elected to each House, then 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 as the Legislature shall prescribe; and if the
people shall approve and ratify such amendment or amendments, by a majority of the
electors qualified to vote for members of the Legislature voting thereon, such amendment
or amendments shall become part of the Constitution.”
11
first adopted by New Jersey in 1844. The New Jersey constitutional clause provided that,
with regard to a proposed amendment or amendments, the legislature had a “ ‘duty . . . to
submit such proposed amendment or amendments . . . to the people, in such manner and
at such time, . . . as the legislature shall prescribe’ ” — but that state’s provision also
regulated the legislature’s authority to prescribe the manner of submission, by further
stating: “ ‘provided, that if more than one amendment be submitted, they shall be
submitted in such manner and form that the people may vote for or against each
amendment separately and distinctly.’ ” (Thorpe, The Federal and State Constitutions
(1909) 2613 (Thorpe), quoting N.J. Const. of 1844, art. IX, italics in Thorpe deleted, new
italics added; see also Cambria v. Soaries (N.J. 2001) 776 A.2d 754, 761-762 (Cambria)
[construing the New Jersey provision as imposing a limitation upon the state legislature].)
By the late 1870’s, at least two other states had essentially identical constitutional
provisions (see Thorpe, supra, at pp. 1153 [Iowa Const. of 1857, art. X, §§ 1 & 2], 4093-
4094 [Wis. Const. of 1848, art. XII, § 1]), and numerous others had substantially similar
provisions imposing both an obligation upon the state legislature to submit its proposed
constitutional amendments to the people, and specifying that such amendments were to
be submitted in a manner that allowed the people to vote separately on proposed
amendments. (See Thorpe, supra, at pp. 367 [Ark. Const. of 1874, art. XIX, § 22], 873
[Ga. Const. of 1877, art. XIII, § 1, par. 1, 1091 [Ind. Const. of 1851, art XVI, §§ 1 & 2],
1257 [Kan. Const. of 1859, art. 14, § 1], 1467 & 1514 [La. Const. of 1868, tit. IX, art.
147, & La. Const. of 1879, art. 256], 1823 [Md. Const. of 1867, art XIV, § 1], 2087
[Miss. Const. of 1868, art. XIII], 2385 [Neb. Const. of 1875, art. XV, § 1], 2933 [Ohio
Const. of 1851, art. XVI, § 1], 3016 [Ore. Const. of 1857, art XVII, §§ 1 & 2], 3148 [Pa.
12
Const. of 1873, art. XVIII, § 1], 3304 [S.C. Const. of 1868, art. XV, §§ 1 & 2], 4063
[W.Va. Const. of 1872, art. XIV, § 2].)10
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.11 All three suggestions were referred to the Committee on
Future Amendments for consideration.
10
The various other state constitutions in existence in 1878-1879 typically provided
for amendments proposed by the legislature, but, like the original California Constitution
of 1849 (art. X, § 1), did not impose a separate-vote requirement with regard to such
amendments. (See Thorpe, supra, at, e.g., pp. 547 [Conn. Const. of 1828, art. XI], 1969
[Mich. Const. of 1850, art. XX, § 1, as amended eff. 1876], 2423 [Nev. Const. of 1864,
art. XVI, § 1], 2672 [N.Y. Const. of 1846, art. XIII, § 1], 3663 [Tex. Const. of 1876, art.
XVII, § 1], 3897-3898 [Va. Const. of 1870, art. XII].)
11
On October 11, 1878, Delegate Martin offered a provision permitting the
Legislature, on a majority vote of both houses, to propose constitutional “alterations or
amendments” that had been “published with the laws which have been passed at the same
session” and further provided that “said amendments shall be submitted to the people for
their approval or rejection at the next general election . . . . If two or more alterations or
amendments shall be submitted at the same time it shall be so regulated that the electors
shall vote for or against each separately.” (1 Willis & Stockton, Debates and
Proceedings, Cal. Const. Convention, 1878-1879, p. 117 (Willis & Stockton).) Four days
later, on October 15, 1878, Delegate White offered a competing proposal aimed at
requiring a two-thirds vote of both legislative houses, but otherwise retaining the
separate-vote language quoted above. (Id., at pp. 150-151.) Yet four days later, on
October 19, 1878, Delegate Blackmer offered a third proposal under which the then-
existing provision (Cal. Const. of 1849, art. X, § 1) would be amended to strike the
Legislature’s authority to submit amendments “ ‘in such manner’ ” as the Legislature
shall prescribe, and to substitute in its place the following: “ ‘and such amendment or
amendments shall be so prepared and distinguished, by numbers or otherwise, that they
(footnote continued on following page)
13
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
(footnote continued from preceding page)
be voted on separately, unless it be found impracticable to so distinguish them.’ ” (1
Willis & Stockton, supra, at p. 165.)
14
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 should be
rejected in favor of an approach limiting that discretion by imposing a separate-vote
requirement essentially identical to that adopted by most other states in the intervening
decades — it seems highly improbable that the California drafters viewed the separate-
vote provision as a limitation upon some unnamed entity rather than upon the Legislature
itself.12 Indeed, as the New Jersey Supreme Court recently observed, the constitutional
record in that state demonstrates that the drafters plainly saw their very similar provision
as a restraint upon the state legislature, and not as a limitation upon some other entity.
(See Cambria, supra, 776 A.2d 754, 762 [relying upon proceedings of the New Jersey
Constitutional Conventions of 1844 and 1947].) We discern no basis for concluding that
12
In addition, in view of the introductory phrase included in article XVIII as adopted
in 1879 (“it shall be the duty of the Legislature to submit”) — a phrase that appeared in
some form in almost every other constitution of the day — it seems highly improbable
that the drafters viewed the following sentence, which contained the separate-vote
provision, as imposing a limitation on any entity other than the Legislature.
15
the California drafters, or the electorate who subsequently adopted the Constitution in
1879, thought otherwise.
3
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 (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.) 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) — 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.) The court in Wright twice more
16
characterized section 1 of article XVIII as setting forth a “limitation” (Wright, supra, 192
Cal. at p. 711), 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, and . . . these [were] not presented in the form of
separate amendments.” (Wright, supra, 192 Cal. at p. 712.) Nevertheless, the court
reiterated, there had been no need to comply with article XVIII section 1’s separate-vote
requirement, because, again, that requirement did not apply to amendments proposed by
initiative. (Wright, supra, 192 Cal. at p. 712.)13
We conclude, contrary to the Legislature’s suggestion, that Wright, supra, 192
Cal. 704, 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.
4
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
13
Thereafter, the court commented in dictum that even if the prior constitutional
amendment had been proposed to the electorate not as an initiative measure but instead
by the Legislature, the prior amendment may have satisfied the separate-vote
requirement: “[W]e are not at all satisfied that under a liberal interpretation of section 1
of article XVIII of the constitution the legislature might not have itself proposed and
presented to the people for their adoption in the form of a single amendment to the
constitution the precise measure embodied in this initiative amendment, even though its
effect might be to change or abrogate other portions of the constitution not embodied in
the particular article thereof thus sought to be amended.” (Wright, supra, 192 Cal. 704,
712-713.)
17
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. (Mo. 1902) 70 S.W. 891, 897 (Gabbert); Jones v. McClaughry (Iowa
1915) 151 N.W.210, 216; State v. Wetz (N.D. 1918) 168 N.W. 835, 847 (Wetz); Kerby v.
Luhrs (Ariz. 1934) 36 P.2d 549, 551-552 (Kerby); Keenan v. Price (Idaho 1948) 195 P.2d
662, 676; Moore v. Shanahan (Kan. 1971) 486 P.2d 506, 516 (Moore); Carter v. Burson
(Ga. 1973) 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 (Md. 1982)
449 A.2d 1144, 1149-1150 (Andrews); State ex rel. Clark v. State Canvassing Bd. (N.M.
1995) 888 P.2d 458, 461; IWP v. State Bd. of Land Com’rs (Idaho 1999) 982 P.2d 358,
363 (IWP); Cambria, supra, 776 A.2d 754, 764.)14 Although decisions finding a
violation of a state constitution’s separate-vote provision are relatively rare in comparison
with the scores of cases that have rejected such claims, at least 19 decisions from eight
jurisdictions during the past 100 years (with most occurring in the past eight years) have
so concluded — determining in each instance that constitutional changes packaged in a
single measure should have been separately submitted to the voters.15 No decision from
14
The Legislature argues that because the early provisions of New Jersey, quoted
ante, at p. 12, and of Wisconsin, prefaced their separate-vote provisions with the word
“provided,” those clauses are substantively different from ours, which does not include an
explicit proviso. We disagree, noting that, in any event, the current clauses of most state
constitutions (including present N. J. Const., art. IX, par. 5, as construed in Cambria,
supra, 776 A.2d 754) are not so prefaced, and furthermore that no court construing such a
clause has drawn the distinction advanced by the Legislature in the case before us.
15
See State v. Powell (Miss. 1900) 27 So. 927, 931-932 (Powell); McBee v. Brady
(Idaho 1909) 100 P. 97, 103-105 (McBee); Kerby, supra, 36 P.2d 549, 554-555 (Ariz.);
State v. Zimmerman (Wis. 1953) 60 N.W.2d 416, 420-421; Lee v. State (Utah 1962) 367
P.2d 861, 864 (Lee); Moore, supra, 486 P.2d 506, 520-521 (Kan.); Armatta, supra, 959
P.2d 29, 71 (Or.); Marshall v. State ex rel. Cooney (Mont. 1999) 975 P.2d 325, 328-333
(Marshall); Bergdoll v. Kane (Pa. 1999) 731 A.2d 1261, 1269-1270 (Bergdoll); Dale v.
(footnote continued on following page)
18
any jurisdiction has suggested that a separate-vote provision has the purpose or effect
advanced by the Legislature in the present case. Indeed, the Legislature’s argument has
not even been raised in any of the scores of cases that we have reviewed.
5
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.
a
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.,
(footnote continued from preceding page)
Keisling (Or.Ct.App. 2000) 999 P.2d 1229, 1232-1235; Sager v. Keisling (Or.Ct.App.
2000) 999 P.2d 1235, 1238-1239; IWP, supra, 982 P.2d 358, 363 (Idaho); Pennsylvania
Prison Soc. v. Commonwealth (Pa. 2001) 776 A.2d 971, 978-982 (lead opn. by Zappala,
J.) (Pennsylvania Prison Soc.); Lehman v. Bradbury (Or. 2002) 37 P.3d 989, 994-1001
(Lehman); Swett v. Bradbury (Or. 2002) 43 P.3d 1094, 1099-1101 (Swett); League of
Oregon Cities v. State (Or. 2002) 56 P.3d 892, 904-911 (League of Oregon Cities); LINT
v. Kitzhaber (Or.Ct.App. 2003) 72 P.3d 967, 971-983, rev. allowed, 84 P.3d 1080; Clean
Elections Institute, Inc. v. Brewer (Ariz. 2004) 99 P.3d 570, 573-577 (Clean Elections
Institute); Meyer v. Bradbury (Or.Ct.App. 2006) ___ P.3d ___ (Apr. 26, 2006).
19
People v. Southern Pac. Co. (1930) 209 Cal. 578, 595 [“ ‘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 (Wis. 1882) 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 provision.
Moreover, as the Court of Appeal below observed, “we do not know that any of [the
Legislature’s] examples [of prior constitutional amendment measures] violate section 1
for no cases have been brought to test them.” In any event, even assuming that, as the
Legislature suggests, some of the prior legislative constitutional amendment measures
that were adopted by the electorate might have failed the strict separate-vote test
endorsed by the Court of Appeal below, as we shall explain post, part II.B.3, we do not
endorse that strict test or anything like it. The Legislature does not argue that any prior
measure cited would fail under scrutiny of the separate-vote provision as we shall
construe it in this case.
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.
b
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
20
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.)16 The Legislature agreed with this
recommendation and in resolution chapter 222 (Assem. Const. Amend. No. 14, Stats.
1961 (1961 Reg. Sess.) res. ch. 222, pp. 5013-5014) proposed to alter the first sentence of
then-existing article XVIII, section 1, by allowing the Legislature to propose not only
amendments to the Constitution, but also revisions.17 The resulting measure was
16
Prior case law had established that pursuant to article XVIII, section 1, as adopted
in 1879, the Legislature had authority to propose only amendments to the Constitution
and not revisions. (Livermore v. Waite (1894) 102 Cal. 113, 118 (Livermore); see also
McFadden v. Jordan (1948) 32 Cal.2d 330, 333-334 [the people have no authority to
propose constitutional revision by initiative].)
17
The ballot pamphlet supplied to the electorate included the following Analysis by
the Legislative Counsel, highlighting the difference between a constitutional amendment
and a revision: “This measure [that is, Proposition 7] . . . . would authorize the
Legislature by a vote of two-thirds of the members elected to each house to propose
complete or partial ‘revisions’ of the Constitution for approval or rejection by the people.
Under existing provisions the Legislature can only propose ‘amendments,’ that is[,]
(footnote continued on following page)
21
submitted to the electorate at the November 1962 general election as Proposition 7. The
ballot materials submitted to the voters concerning that matter did not suggest that the
proposed amendment in any manner would change the meaning or effect of the unaltered
second sentence of the section — the sentence at issue in this case, which is directed
exclusively to the question of legislative proposals for amendment to the Constitution and
which contains the separate-vote provision.18
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
(footnote continued from preceding page)
measures which propose changes specific and limited in nature. ‘Revisions,’ i.e.,
proposals which involve broad changes in all or a substantial part of the Constitution,
can presently be proposed only by convening a constitutional convention.” (Ballot
Pamp., Gen. Elec. (Nov. 6, 1962) analysis of Prop. 7, p. 13, italics added.)
18
Specifically, even after amendment of article XVIII, section 1, in 1962, the second
sentence of that section continued to read, as it had since 1879: “Should more
amendments than one be submitted at the same election they shall be so prepared and
distinguished, by numbers or otherwise, that each can be voted on separately.” (1 Stats.
1963, p. ciii.)
22
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 dictum in Wright, supra, 192 Cal. 704, 712
(quoted ante, fn. 13) for the proposition that the provision “might be interpreted broadly
enough to permit proposal of an amendment that would effect changes in several parts of
the Constitution where all changes relate to the same general subject matter.”
(Background Study 7, supra, at pp. 18-19.)19 The Revision Commission then
19
Similar language appeared in each of the prior background studies, beginning with
the Revision Commission’s Background Study 1 (c. 1966) at page 14. (That undated
study apparently was prepared prior to July 14, 1966 — the dates on which the committee
(footnote continued on following page)
23
commented: “At any rate the Legislature, it seems, could easily get around the limitation
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.” (Id., at p. 19; see also id., at pp. 4, 25; Rev. Com., Proposed Revision of Cal.
Constitution (Feb. 15, 1968) Com. on Revised Provisions, p. 109 [formally
recommending to the Legislature that the separate-vote provision be deleted “as
ineffective because it can be circumscribed by entitling several amendments as a
revision”].)
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
(footnote continued from preceding page)
reviewing article XVIII took its initial actions on the matter; see Background Study 7,
supra, at pp. 24-26.)
24
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, rejected the
Revision Commission’s recommendation to delete the separate-vote provision, and
instead proposed to retain that provision.
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.,
25
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,
26
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. Sess.) res. chs. 263, 340, pp. 3933, 3934, 4004 & 4016.)
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).20 And finally, the Legislature
proposed in the same measure various changes to article XXIV — a wholly unrelated and
extensive provision concerning state civil service.21
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
20
(Assem. Const. Amend. No. 28, Stats. 1969 (1969 Reg. Sess.) res. ch. 340,
p. 4017.)
21
(Assem. Const. Amend. No. 28, Stats. 1969 (1969 Reg. Sess.) res. ch. 340,
pp. 4017-4019.)
27
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. Const. amend. No. 67, Stats. 1970 (1970 Reg. Sess.) res.
ch. 187, pp. 3780-3781) (hereafter Resolution 187), the Legislature resolved to amend
both (1) article XVIII by, among other things, permitting the Legislature to “amend or
withdraw” any proposed amendment or revision, establishing that such measures become
28
effective on the day after adoption, and making no substantive change to the separate-
vote provision, and (2) former article IV, section 24, subdivision (a) of the Constitution
(present Cal. Const., art. II, § 10, subd. (a)), relating to the effective date of adopted
initiatives and referenda — and that measure eventually was submitted to the voters as
Proposition 16.22
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.)23
22
As to one of the 16 resolutions passed by the Legislature submitting the phase-
three constitutional changes to the voters at the November 3, 1970 General Election, the
Legislature apparently felt obligated to take a different course, and its resolution
characterized that measure as “a revision.” Resolution chapter 189 was a proposal to
repeal parts of Article XX and amend other parts of that article, the constitutional
provision addressing “miscellaneous subjects” (including matters ranging from making
Sacramento the state capital, to prohibiting those who fight a duel from holding public
office, to reinstatement of public employees who resign to join the federal or state armed
forces). The Legislature described that measure as proposing to “the people of the State
of California a revision of portions of the Constitution of the state by amending Sections
1, 8, 17, 17½, 18, and 20 of Article XX, and by repealing Sections 1, 3.5, 4, 5, 7, 9, 12,
13, and 14 of Article XX, relating to miscellaneous subjects.” (Assem. Const. Amend.
No. 65, Stats. 1970 (1970 Reg. Sess.) res. ch. 189, p. 3781, italics added.)
23
With regard to the one measure that the Legislature had characterized as a revision
(see ante, fn. 22), the Attorney General’s title for Proposition 15 (formerly resolution
chapter 189) read: “Partial Constitutional Revision. Legislative Constitutional
Amendment. . . .” (Ballot Pamp., Gen. Elec. (Nov. 3, 1970) analysis of Prop. 15, p. 25.)
(footnote continued on following page)
29
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 XVIII24
(footnote continued from preceding page)
In addition, the Attorney General departed from the Legislature’s characterization of
resolution chapter 171 (at Stats. 1970 (1970 Reg. Sess.) p. 3732) (repealing obsolete
provisions relating to the administration of aged and blind aid programs) as an
amendment rather than a revision, and prepared a ballot title for that matter (designated
Prop. 17) as follows: “Partial Constitutional Revision. Legislative Constitutional
Amendment. Repeals obsolete provisions relating to social welfare.” (Ballot Pamp.,
Gen. Elec. (Nov. 3, 1970) analysis of Prop. 17, 29.)
24
The Legislative Counsel’s Analysis first described the existing provisions, and
then explained that the measure “would retain the general substance of these provisions
with the following major changes: [¶] (1) A new provision would be added specifically
authorizing the Legislature, by a two-thirds vote of the membership of each house, to
amend or withdraw a constitutional amendment or revision which the Legislature has
proposed where the action is taken before the proposal has been voted on by the
electorate. [¶] (2) (a) The general requirement that the Legislature provide for the
constitutional convention at the session following the voters’ approval of the proposition
authorizing the convention would be replaced with a requirement that the Legislature
provide for the convention within six months after the voters’ approval. [¶] (b) The
existing constitutional limitations on the number of elected delegates to a constitutional
convention and the requirement that they have the same qualifications and be chosen in
the same manner as legislators would be deleted. A requirement would be added that the
delegates, each of whom must be a voter, be elected from districts as nearly equal in
population as may be practicable. [¶] (c) The existing constitutional requirement that the
delegates meet within three months after their election would be deleted. [¶] (3) A
provision would be added that if two or more measures amending or revising the
Constitution are approved by the voters at the same election and they conflict, the
provisions of the measure receiving the highest affirmative vote shall prevail. Thus, no
distinction would be made in the Constitution between amendments proposed by the
Legislature and by initiative measures. [¶] (4) Provisions prescribing detailed
procedures for submitting to the voters, revisions proposed by the constitutional
(footnote continued on following page)
30
and to former article IV, section 24, subdivision (a) of the Constitution (present Cal.
Const., art. II, § 10, subd. (a)).25 Nowhere within this extensive recitation was there any
reference to the restated separate-vote provision, much less any indication that the
separate-vote provision in the interim since 1962 had taken on a new meaning under
which it operated ― no longer as a limitation upon the Legislature’s authority to package
disparate amendments in a single measure, but the opposite ― a protection of the
Legislature’s asserted prerogative to package disparate proposed changes in a single
measure as it wishes.
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
(footnote continued from preceding page)
convention and for certifying the results of the election, would be deleted.” (Ballot
Pamp., Gen. Elec. (Nov. 3, 1970) analysis of Prop. 16, pp. 27-28, italics added.)
25
The Legislative Counsel’s analysis explained: “Section 24 of Article IV of the
Constitution now provides that an initiative or referendum measure takes effect five days
after the official declaration of vote by the Secretary of State, unless the measure
provides otherwise, while . . . constitutional amendments and revisions submitted by the
Legislature take effect upon approval by voters, unless the measures provide otherwise.”
(Ballot Pamp., Gen. Elec. (Nov. 3, 1970) analysis of Prop. 17, p. 28, boldface omitted.)
The analysis also explained that under the proposed measure, “the provision for the
effective date of all ballot measures would be the same, no matter how the ballot
measures originated. Each ballot measure would become effective the day after the
election at which it is approved, unless the measure provides otherwise.” (Ibid.)
31
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 ‘amendment’ or as a
‘partial revision’ of the Constitution”; that after the 1962 amendment, the “need to
distinguish between ‘revision’ and ‘amendment’. . . disappeared for purposes of
legislative proposals” (italics added); and that “the 1962 amendment to [the first sentence
of] section 1 established beyond doubt that it is up to the Legislature to decide what
proposed changes to put together in a single constitutional amendment” pursuant to the
separate-vote provision found in the second sentence of section 1. In its reply brief, the
Legislature further asserts that its designation of a measure (in a legislative resolution
announcing a constitutional amendment proposed by the Assembly or by the Senate) as
either a revision or an amendment is “no longer relevant,” and that requiring or expecting
the Legislature to designate a measure “unnecessarily complicates the legislative
process.”
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.26
26
To reiterate, from 1879 until amended in November 1970, the second sentence of
article XVIII, section 1 read: “Should more amendments than one be submitted at the
(footnote continued on following page)
32
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 the
failed Propositions from the June 1970 ballot and the successful Proposition 16 from the
November 1970 ballot. It argues that “if the Legislature intended to so limit its power,
(footnote continued from preceding page)
same election they shall be so prepared and distinguished, by numbers or otherwise, that
each can be voted on separately.” As the sentence was amended in November 1970, it
presently states, “Each amendment shall be so prepared and submitted that it can be voted
on separately.” (Ibid.)
33
how could it then simultaneously propose Propositions 2, 3, 4 and 5 on the June 1970
ballot or Proposition 16 on the November 1970 Ballot? Each measure breached any such
bar. . . . The Legislature’s actions make sense only if the ‘separate vote’ sentence carried
a different meaning. Only the Legislature’s interpretation of section 1 fits the
contemporaneous history of the 1970 amendment.”
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
34
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 1.27
In conclusion on this point, we find no support in the language or history of the
separate-vote provision, or in any of numerous decisions of our sister states construing
their own essentially identical provisions, that would lead us to adopt the Legislature’s
construction of article XVIII, section 1, as protecting an asserted legislative right to
combine into one package disparate and unrelated changes to the Constitution. Nor can
we agree with the Legislature that, in light of its ability, since 1962, to propose revisions
as well as amendments, the limitation upon legislatively proposed amendments imposed
by the separate-vote provision no longer is relevant or effective. The provision’s words
and history, its construction by the Revision Commission, and the uniform construction
of such provisions in other jurisdictions instead reveals that it was intended to be, and
27
The Legislature, after describing the changes made by Proposition 16, asserts that
“[i]n a loose sense these changes all relate to elections. They are not, however,
‘functionally related.’ ” But even assuming, as the Legislature asserts, that the various
changes proposed in Proposition 16 were not “functionally related,” as we shall explain
post, part II.2.c, they did not need be. Moreover, the provisions of that measure not only
were related to the general subject of elections (as the Legislature concedes), they shared
a more focused commonality: each change in article XVIII and in former article IV,
section 24, subdivision (a) of the Constitution (present Cal. Const., art. II, § 10, subd. (a))
related to election procedures for amending and revising the Constitution. As we shall
explain post, part II.2.c, it is sufficient, under the separate-vote requirement, that
provisions be reasonably germane to a common theme, purpose, or subject — and all
parts of Proposition 16 clearly were reasonably germane to the subject of amending and
revising the Constitution.
35
remains, a limitation upon the power of the Legislature to submit constitutional
amendments to the voters.28
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.
B
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, 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
28
Because, as noted above, the Legislature presented Resolution 103 as an
amendment and not as a “revision” or “partial revision,” we need not address the problem
of defining the contours of those terms. Furthermore, as the parties observed at oral
argument, the definitional issue, which is not fully briefed in this case, is a potentially
difficult one.
36
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 changes that are not reasonably germane to a common theme, purpose, or
subject, the presentation of such a single measure to the voters as an amendment will
violate the separate-vote provision found in the second sentence of article XVIII,
section 1.
1
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, 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.
37
Superior Court (1979) 25 Cal.3d 33, 39 (Fair Political Practices Commission); Perry v.
Jordan (1949) 34 Cal.2d 87, 92-93, 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 (Jones); Legislature v. Eu
(1991) 54 Cal.3d 492, 512 (Eu); Brosnahan v. Brown (1982) 32 Cal.3d 236, 243-253
(Brosnahan); Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1099; Perry, supra, 34
Cal.2d at pp. 92-93.)29
29
In setting forth the “reasonably germane” test, several of our prior decisions have
stated or repeated language suggesting the standard requires that each of a measure’s
parts be reasonably germane to one another as well as reasonably germane to a common
theme, purpose, or subject. (See, e.g., Brosnahan, supra, 32 Cal.3d 236, 245 [“ ‘an
initiative measure does not violate the single-subject requirement if . . . all of its parts are
“reasonably germane” to each other,’ and to the general purpose or object of the
initiative” (italics omitted)]; Eu, supra, 54 Cal.3d 492, 512, quoting Brosnahan; Jones,
supra, 21 Cal.4th 1142, 1157, quoting Eu.) In applying the reasonably germane test,
however, our decisions uniformly have considered only whether each of the parts of a
measure is reasonably germane to a common theme, purpose, or subject, and have not
separately or additionally required that each part also be reasonably germane to one
another. (See, e.g., Eu, supra, 54 Cal.3d at pp. 512-514; Brosnahan, supra, 32 Cal.3d at
pp. 245-253; Fair Political Practices Commission, supra, 25 Cal.3d 33, 38-43; see also
Jones, supra, 21 Cal.4th at p. 1158 [“The single-subject rule . . . simply precludes drafters
from combining, in a single [measure], provisions that are not reasonably germane to a
common theme or purpose” (italics omitted)].) The governing decisions’ consistent
application of the standard suggests that a measure’s separate provisions have been
considered to be reasonably germane to each other within the meaning of the standard so
long as all of the provisions are reasonably germane to a single common theme, purpose,
or subject. For clarity and simplicity, we believe it is appropriate to describe the test, as
set forth in the text above, as simply requiring that the separate provisions of a measure
be reasonably germane to a common theme, purpose, or subject. (At the same time, of
course, our decisions also establish that the single subject provision “obviously forbids
joining disparate provisions which appear germane only to topics of excessive generality
such as ‘government’ or ‘public welfare.’ ” (Brosnahan, supra, 32 Cal.3d at p. 253; see,
e.g., Jones, supra, 21 Cal.4th at pp. 1161-1162.).)
38
Most of our sister states have similarly and leniently construed their own single
subject provisions.30 And, significantly, for more than a century a clear majority of the
nearly 30 other jurisdictions that have a separate-vote provision similar to ours have
similarly construed their separate-vote provisions, upholding amendments against
challenges so long as the measure’s provisions are reasonably germane to a common
theme, purpose, or subject.
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, 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.)31 Similarly, Gabbert and numerous other decisions also have recognized,
30
See, e.g., Dubois & Feeney, Lawmaking by Initiative (1998) page 138; but see
Lowenstein, Initiatives and the New Single Subject Rule (2002) 1 Elec. L.J. 35
(criticizing recent decisions, some of which employ a more exacting single subject test
and find violations of states’ single subject provisions and/or separate-vote provisions);
Miller, Courts as Watchdogs of the Washington State Initiative Process (2001) 24 Seattle
U. L. Rev. 1053, 1079-1083 (noting with approval the same recent cases).
31
Accord, Wetz, supra, 168 N.W. 835, 847 (North Dakota’s two provisions are
designed to prevent “logrolling and joker practices which are so familiar to students of
(footnote continued on following page)
39
explicitly or implicitly, that those two rules, despite their different phrasing, are kindred
provisions that should be construed consistently — that is, as each having essentially the
same substantive effect. (Id., at p. 897.)32
(footnote continued from preceding page)
legislation”); Carter, supra, 198 S.E.2d 151, 156 (referring to Georgia’s separate-vote
and single subject rules, the court observed that “ ‘the evils [of logrolling] to be prevented
by prohibiting such a practice are as apparent in the one case as in the other’ ”); Petition
No. 314, supra, 625 P.2d 595, 603-605 (quoting and relying interchangeably upon single
subject and separate-vote provision cases, and finding the underlying purpose of the two
provisions of the Oklahoma charter to be the prevention of logrolling); Andrews, supra,
449 A.2d 1144, 1150 (Maryland’s constitutional single subject and separate-vote
provisions “must be construed together as serving the same objectives and as being
directed at the same evils”). Most recently, the New Jersey Supreme Court observed that
the “primary goal underlying” “both the single [subject] and the separate vote
requirements found in many state constitutions . . . is the prevention of ‘logrolling.’ ”
(Cambria, supra, 776 A.2d 754, 764.)
32
See also, e.g., State v. Mason (La. 1891) 9 So. 776, 800-801 (noting that the single
subject provision test applies to a separate-vote provision challenge); Lobaugh v. Cook
(Iowa 1905) 102 N.W. 1121, 1123 (Lobaugh) (construing state constitution’s separate-
vote provision by analogy to the constitution’s single subject provision); State ex. rel.
Collins v. Jones (Miss. 1914) 64 So. 241, 253-254 (construing state’s separate-vote
provision by reference to cases construing the state’s statutory single subject provision,
and disapproving an earlier Mississippi decision that held otherwise); Wetz, supra, 168
N.W. 835, 847, 850 (construing North Dakota’s separate-vote provision by analogy to its
single subject provision and employing the same test); Mundell v. Swedlund (Idaho 1937)
71 P.2d 434, 442 (it is “reasonable to assume” that the tests for a single-subject-provision
violation and a separate-vote-provision violation “should be determined in the same
manner and by the same rule and of course reasoning”); Graham v. Jones (La. 1941) 3
So.2d 761, 774-775 (test for violation of state’s separate-vote provision is determined by
reference to the state’s single subject provision); State v. Holman (Mo. 1962) 363 S.W.2d
552, 556 (Holman) (state’s single subject provision is “further” and “controlling” with
respect to the state’s separate-vote provision); Carter, supra, 198 S.E.2d 151, 156
(construing the Georgia Constitution’s separate-vote provision by analogy to the state
constitution’s single subject provision and employing the same test); Andrews, supra, 449
A.2d 1144, 1150 (the Maryland Constitution’s separate-vote provision and single subject
provisions “must be construed together as serving the same objectives and as being
directed to the same evils”). More recently, the Missouri Supreme Court, consistent with
(footnote continued on following page)
40
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, 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.)33 After other early cases followed this same course,34 a contemporaneous
(footnote continued from preceding page)
its view in Gabbert, supra, 70 S.W. 891, observed that its state constitution’s separate-
vote provision restates in different language the same constitution’s single subject
provision. (Missourians to Protect the Init. Proc. v. Blunt (Mo. 1990) 799 S.W.2d 824,
830 (Blunt).) Similarly, the Idaho Supreme Court, finding a constitutional amendment
impermissible under its constitution’s separate-vote provision, applied a single subject
test and concluded its analysis by referring to the state’s constitutional separate-vote
provision as “the ‘single subject rule’ of the Idaho Constitution.” (IWP, supra, 982 P.2d
358, 363.)
33
Referring to the rejected test, the court stated: “Such a construction would, we
think, be so narrow as to render it practically impossible to amend the constitution; or, if
not practically impossible, it would compel the submission of an amendment which,
although having but one object in view, might consist of considerable detail, and each
separate provision, though all promotive of the same object and necessary to the
perfection and practical usefulness thereof, if adopted as a whole, in such form that a
(footnote continued on following page)
41
commentator endorsed these lenient constructions of the separate-vote provision. (Dodd,
Revision and Amendment of State Constitutions (Johns Hopkins 1910) 181 (Dodd).)
Similarly, surveying existing case law in 1915, the editors of 6 Ruling Case Law (1915)
observed that the test under the various separate-vote provisions is “whether particular
amendments embrace more than one subject or whether the entire amendment is germane
to a single general subject.” (Id., § 22, p. 30.)
Cases from other jurisdictions continued to follow that same course,35 leading
another commentator to observe in the mid-1930’s that decisions construing the separate-
vote provisions of the various state constitutions focus upon “whether particular
amendments embrace more than one subject or whether the entire amendment is germane
to a single general subject, and the rule has been laid down that a constitutional
amendment embracing several subjects, all of which are germane to the general subject of
the amendment, will, under [a separate-vote] requirement, be upheld as valid, and may be
(footnote continued from preceding page)
defeat of one of its important matters of detail might destroy the usefulness of all the
other provisions when adopted.” (Timme, supra, 11 N.W. 785, 790.)
34 See,
e.g.,
Gabbert, supra, 70 S.W. 891, 897-898 (Missouri constitutional
amendment abolishing the common law jury unanimity requirement in different levels of
both civil courts, and imposing a two-thirds and three-quarters vote rule, respectively,
properly was submitted to voters in one ballot measure because the changes were
germane to “one dominant idea” and “one subject”); People v. Sours (Colo. 1903) 74 P.
167, 178 (amendment embracing more than one subject [consolidation of specified city
and county governments, and framing of home rule charters by all cities within the state]
did not violate the separate-vote provision where the subjects are “germane to the general
subject of the amendment” or are functionally related such that “it might not be desirable
that one be adopted, and not the other”); Lobaugh, supra, 102 N.W. 1121, 1123
(amendment creating biennial statewide elections, allowing the Iowa Legislature to select
the Iowa Chief Justice, and requiring all statewide and local elections to be held at the
same time, addressed a common subject and properly was submitted as one measure).
35
See, e.g., Wetz, supra, 168 N.W. 835, 846-848; State v. Cook (Ohio 1932) 185
N.E. 212, 213-214; accord, Curry v. Laffoon (Ky.Ct.App. 1935) 88 S.W.2d 307, 308.
42
submitted to the people as a general proposition.” (Annot., Proposed Constitutional
Amendment (1934) 94 A.L.R. 1510, 1511.)
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 (La. 1949) 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.36
36
See Fugina v. Donovan (Minn. 1960) 104 N.W.2d 911, 914 (upholding a
constitutional amendment, submitted as a single measure, permitting the state legislature
to extend legislative terms and allowing legislators to serve as notaries and seek election
to other offices, because the provisions were rationally related to a single subject; court
rejected a strict functional relationship test under which “propositions that may be
separately submitted without being incomplete shall be submitted separately”); Penrod v.
Crowley (Idaho 1960) 356 P.2d 73, 79 (constitutional amendment revising the selection
and jurisdiction of justices of the peace properly was submitted in one measure, because
“both are germane to the common object and purpose”); Holman, supra, 363 S.W.2d 552,
556 (Missouri constitutional amendment authorizing both general obligation and general
revenue bonds properly was submitted in one measure because, by analogy to the single
subject rule, they are related to the general subject of the authorization of municipal
financing); State ex rel. Roahrig v. Brown (Ohio 1972) 282 N.E.2d 584, 586
(constitutional amendment concerning administration of the state legislature, election of
governor and lieutenant governor, repeal of provisions concerning the supreme court, and
barring persons convicted of specified felonies from holding public office properly was
submitted in one measure, because “each of its subjects bears some reasonable
relationship to a single general object or purpose”); City of Raton v. Sproule (N.M. 1967)
429 P.2d 336, 342 (following the “majority” rule that an “amendment, which embraces
several subjects or items of change” ⎯ there, provisions concerning special elections and
regular elections, and qualified voters at those elections ⎯ “may be submitted to the
(footnote continued on following page)
43
2
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, 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.37 Applying that test,
the court found a violation of the state’s separate-vote provision, because the electorate
might have voted in favor of popular elections for supreme court justices but not for trial
court judges, and one provision could have been enacted without the other. (Id., at
pp. 930-931.)
(footnote continued from preceding page)
electorate as one general proposition, if all the subjects or items of change contained in
the amendment are germane to one general object or purpose”); Carter, supra, 198
S.E.2d 151, 157 (Georgia constitutional amendment consolidating and reorganizing
executive branch agencies properly was submitted in one measure, because it addressed
“but a single subject matter” and “[a]ll of its parts were germane to a single purpose”);
Andrews, supra, 449 A.2d 1144, 1150 (Maryland constitutional separate-vote provision
and single subject provision are to be construed together as common “constraints on the
legislature”; Maryland constitutional amendments restructuring the state court system and
making discretionary the former right of removal, properly could have been submitted in
one measure consistent with the separate-vote provision, but legislature also had
discretion under that provision to submit them separately and to make passage of one
contingent upon the other).
37
The court held that “[w]hether amendments are one or many must be solved by
their inherent nature — by the consideration whether they are separate and independent
each of the other, so as that each can stand alone without the other, leaving the
constitutional system symmetrical, harmonious, and independent on that subject . . . .”
(Powell, supra, 27 So. at p. 931.)
44
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, 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.1.38
Despite Mississippi’s abandonment of an exacting functional relationship test in
favor of the majority rule’s lenient test, a smattering of opinions issued in Idaho in 1909,
Arizona in 1934, Utah in 1962, and Kansas in 1971 — all finding violations of the
separate-vote provision — continued to endorse a strict functional relationship test.
(McBee, supra, 100 P. 97, 103-105; Kerby, supra, 36 P.2d 549, 554-555; Lee, supra, 367
P.2d 861, 864; Moore, supra, 486 P.2d 506, 520-521.) These cases remained an
essentially dormant minority position until the Supreme Court of Oregon — without
citing any of them or acknowledging the majority rule cases discussed above — revived
this strict interpretation of the separate-vote provision in 1998.
In Armatta, supra, 959 P.2d 29, the Oregon high court considered a challenge
under its constitution’s separate-vote provision39 to an extensive “crime victims’ rights”
initiative constitutional amendment that had been adopted by the voters. After first
finding that the Oregon separate-vote provision applies not only to constitutional
amendments submitted by the state legislature, but also to such amendments submitted
38
In reaching this conclusion, the Mississippi court also relied heavily upon its own
case law construing the state’s analogous statutory single subject rule. (State ex rel.
Collins v. Jones, supra, 64 So. 251, 253-255.)
39
The Oregon provision reads: “When two or more amendments shall be submitted
. . . to the voters of this state at the same election, they shall be so submitted that each
amendment shall be voted on separately.” (Or. Const., art. XVII, § 1.)
45
through the initiative process (id., at pp. 53-55),40 the court proceeded to construe the
separate-vote provision. The court rejected the state’s argument (which reflected the
majority rule) that the separate-vote provision should be construed consistently with, and
as having essentially the same effect as, the single subject rule. The court in Armatta
explained that in its view a measure might satisfy the lenient requirements of the single
subject rule, and yet still fail what the court discerned to be the considerably stricter
requirements of the separate-vote provision. (Id., at p. 64.) The court announced: “[T]he
proper inquiry is to determine whether, if adopted, the proposal would make two or more
changes to the constitution that are substantive and that are not closely related.” (Ibid.,
italics added.) In other words, the court in Armatta embraced, for purposes of the
separate-vote clause, a version of the minority rule’s exacting inquiry into the relatedness
of provisions within a single measure.
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, 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.)
40
In at least Montana and Arizona as well, the separate-vote provision applies not
only to constitutional amendments proposed by the state legislature, but also to
constitutional amendments proposed by the people through the initiative. (See Ariz.
Const., art. XXI, § 1; Mont. Const., art. XIV, § 11.) In California, by contrast, the
separate-vote provision applies only to legislative proposals for constitutional
amendment, and does not govern initiative proposals for constitutional amendment (Cal.
Const., art. XVIII, § 1; Wright, supra, 192 Cal. 704, 711-712), which of course instead
are governed by the single subject rule.
46
Based upon subsequent decisions applying Armatta’s rule, it is clear that the
Oregon Supreme Court’s inquiry concerning whether challenged provisions are
sufficiently closely related is indeed a demanding one. For example, in Lehman, supra,
37 P.3d 989, that same court in 2002 found that a 1992 initiative amendment imposing
term limits violated the state’s separate-vote provision, because the measure presented
questions to the voters in a single proposition concerning term limits for (1) federal
elective office and (2) for state elective office. The court found the two provisions,
although related, were not “ ‘closely’ related” to each other, and hence invalidated the
state’s decade-old term limits provision for state offices. (Id., at p. 999.) Similarly, in
Swett, supra, 43 P.3d 1094, the Oregon high court in 2002 invalidated under the separate-
vote requirement a 1998 election reform initiative measure, presented to the voters in a
single proposition, that contained provisions (1) requiring disclosure of certain political
contributions of $500 or more, and (2) requiring that initiative signature-gatherers be
registered Oregon voters. Finding no “close relation” between these two changes, the
court declared the entire measure invalid. (Id., at p. 1100.)41 The history of this case law
and related matters has led one commentator to predict that under the strict Armatta test
as applied in Oregon, most proposed constitutional amendments will fail. (Hoesly,
Reforming Direct Democracy: Lessons From Oregon (2005) 93 Cal.L.Rev. 1191, 1224
(Reforming Direct Democracy); see also Bentley, Armatta v. Kitzhaber: A New Test
Safeguarding the Oregon Constitution From Amendment by Initiative (1999) 78 Or.
41
Most recently, in League of Oregon Cities, supra, 56 P.3d 892, the Oregon high
court invalidated under the separate-vote provision a regulatory takings reform measure,
because it presented to the voters in a single proposition provisions (1) expanding
property rights and (2) implicitly reducing free speech rights; once again the court found
no “close relationship” between these two changes, and declared the entire measure
invalid. (Id., at pp. 909-910.) We note that all of the cases in which the Oregon courts
have found separate-vote provision violations have concerned initiative constitutional
amendments (as contrasted with legislative constitutional amendments).
47
L.Rev. 1139, 1154-1156 [noting the difficulty of drafting a measure that meets the
Armatta test].)42 Indeed, in the few other jurisdictions that recently have embraced
(explicitly or implicitly) Armatta’s interpretation of the separate-vote provision under
their own constitutions, the results have, with one exception, been consistent with the
recent Oregon experience.43
42
In only one post-Armatta Oregon appellate decision raising a separate-vote
provision issue has a violation not been found (Hartung v. Bradbury (Or. 2001) 33 P.3d
972) — and the holding in that case appears to be confined to itself, having been ignored
in the most recent three Oregon Supreme Court decisions addressing the separate-vote
issue. In Hartung, supra, petitioners challenged the Secretary of State’s reapportionment
of state legislative districts, arguing that 1952 and 1986 constitutional amendments under
which reapportionment had proceeded were invalid under the state constitution’s
separate-vote provision. After assuming without deciding that the challenge could be
raised so many “years after the adoption of those amendments” (id., at p. 976, fn. 3), the
court noted that it many years earlier had rejected a separate-vote challenge to the 1952
amendment in Baum v. Newbry (Or. 1954) 267 P.2d 220 (a decision that, following the
majority rule described ante, pt. II.B.1, employed a lenient rather than strict construction
of the separate-vote rule) and that the 1986 amendment “made [only] relatively modest
changes” to that prior amendment (Hartung, supra, 33 P.3d at p. 976). The court then
announced — without describing the amendments or engaging in any analysis under
Armatta, supra, 959 P.2d 29, 64, concerning whether the amendments would “make two
or more changes to the constitution that are substantive and are not closely related” —
that in light of its conclusion in Baum, “the more limited 1986 amendment necessarily
withstands petitioners’ constitutional challenge.” (Hartung, supra, 33 P.3d at p. 976,
italics added.) As one commentator has observed, it appears that under the Armatta test
(as articulated in that case and strictly applied in subsequent Oregon decisions), the
amendments at issue in Hartung, would have been found to violate the state’s separate-
vote provision. (Reforming Direct Democracy, supra, 93 Cal.L.Rev. 1191, 1222-1223.)
43
The Supreme Court of Montana, in Marshall, supra, 975 P.2d 325, found a
violation of that state’s separate-vote provision with regard to an initiative constitutional
amendment tax reform measure that presented to the voters in a single proposition
provisions (1) amending the revenue and finance article; (2) eliminating the sovereign
immunity shield for a violation of the amended provisions; and (3) making an exception
to limitations placed upon the Governor’s veto powers, by allowing veto of referenda
proposing new or increased taxes. (Id., at pp. 330-332.)
The Supreme Court of Pennsylvania, in Pennsylvania Prison Soc., supra, 776
A.2d 971, found a violation of that state’s separate-vote provision with regard to a
(footnote continued on following page)
48
(footnote continued from preceding page)
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, 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, 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, 982 P.2d 358,
363.)
Similarly, the Supreme Court of Arizona — again, consistently with its own
earlier minority-view decision in Kerby, supra, 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, 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, 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
(footnote continued on following page)
49
3
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 its
briefing before this court petitioner Californians for an Open Primary supported and
defended the Court of Appeal’s adoption of the test set forth in Armatta, supra, 959 P.2d
49, at oral argument counsel for petitioners retreated and professed being “agnostic”
regarding the proper test to be applied under the separate-vote provision. For reasons set
forth below, we disagree with the Court of Appeal below, and conclude that although
Armatta’s approach and its exacting test may find support in the language, history,
constitutional framework, and case law of Oregon and some other jurisdictions, the same
cannot be said under the California Constitution’s language, history, constitutional
framework, or case law. Instead, we shall conclude that in California — as in the vast
majority of states — the separate-vote provision always has had, and retains, essentially
the same effect as the single subject rule, and does not impose a stricter standard
requiring a showing of close relatedness (or functional relatedness) of the challenged
provisions presented in a single measure.
The court in Armatta, supra, 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-
(footnote continued from preceding page)
tax on new motor vehicles. The court in Cambria found these two provisions “closely
related” to each other. (Id., at p. 765.)
50
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 subdivision44 or even in the same sentence.45 In any event,
for a number of reasons described below, we agree with the majority rule and conclude
that these provisions of the California Constitution should be construed in essentially the
same manner, finding that most of the reasons that led the Oregon high court to conclude
otherwise in Armatta (and that have led some other courts to follow Oregon in this
regard) do not apply here.
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 ante,
44
See Andrews, supra, 449 A.2d 1144, 1150 (construing the single subject and
separate-vote provisions of Md. Const., art XIV, § 1, “together as serving the same
objectives and as being directed at the same evils”); Blunt, supra, 799 S.W.2d 824, 830
(construing the single subject and separate-vote provisions of Mo. Const., art. XII, § 2(b),
together and interchangeably).
45
See Petition No. 314, supra, 625 P.2d 595, 602-606 (construing the single subject
and separate-vote provisions of Okla. Const., art. XXIV, § 1 [2d par.] together and
interchangeably).
51
fn. 40), the separate-vote provision applies to all constitutional amendments, whether
submitted by the state legislature or the electors. Based upon this particular feature of the
Oregon state Constitution, the court in Armatta drew a distinction between enactment or
adoption of mere legislation — to which the state’s lenient single subject provision
applies — and constitutional amendments, to which the separate-vote provision applies.
The court in Armatta reasoned that imposing a stricter requirement for amending the state
charter “makes sense, because the act of amending the constitution is significantly
different from enacting or amending legislation,” and it suggested that the test under the
separate-vote provision should be more exacting than under the single subject test in
order to “safeguard” the integrity of the “fundamental law” — that is, the state
constitution. (Armatta, supra, 959 P.2d 49, 63.)
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.) 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 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
52
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.)
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, 959 P.2d 49. (Schmitz, supra, 21 Cal.3d at pp. 97-100.)
A majority of our court in Brosnahan, supra, 32 Cal.3d 236, 248-249, 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 test under the separate-vote provision of article XVIII, section 1. We would
produce a scheme under which the Legislature’s authority to submit proposals for
amending the state Constitution would be significantly more circumscribed than the
electors’ authority to do the same through the initiative process. The electors’ right to
amend the Constitution would be controlled only by the lenient single subject rule (under
which proposals for amendment may be combined so long as they are reasonably
germane to a common theme, purpose, or subject), while the Legislature’s authority to
submit a single measure proposing amendment of the Constitution would be subject to
strict review under the separate-vote provision (under which proposals for amendment
may be combined only if they are, among other things, “closely” or “functionally” related
to each other).
53
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, 959 P.2d 49, or endorsed by the
Court of Appeal below. In Cambria, supra, 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.46
46
Indeed, reports prepared in the 1960’s by the Revision Commission suggest the
opposite and reveal that the drafters saw no reason to view the separate-vote provision as
imposing a requirement stricter than imposed by the single subject rule. In Background
Study 1 (mentioned ante, fn. 19), after describing the “liberal” single subject rule
applicable to initiatives proposing constitutional amendments (Background Study 1,
supra, at p. 14), the report commented: “It seems likely that the permitted scope of an
amendment proposed either by the Legislature or by initiative would be construed to be
(footnote continued on following page)
54
Nor, unlike the decisions of some of the jurisdictions that recently have endorsed a
strict construction of other separate-vote provisions, does California case law support
such an interpretation. For example, the Idaho Supreme Court decision in IWP, supra,
982 P.2d 358, 362-363, found support for its strict reading of that state’s separate-vote
provision in its 1909 decision in McBee, supra, 100 P. 97. Likewise, the Arizona
Supreme Court’s decision in Clean Elections Institute, supra, 99 P.3d 570, 573-577,
found support for a strict interpretation of its separate-vote provision in its 1934 decision
in Kerby, supra, 36 P.2d 549. In neither of these minority-rule jurisdictions did the
recent determination to embrace a strict test reflect a break with prior case law.47 By
(footnote continued from preceding page)
essentially the same, i.e., limitation to a single subject . . . .” (Ibid.) Later, the same
study commented: “No good reason appears why different rules should govern initiative
amendments and legislative amendments, at least with respect to limitation on the scope
of an amendment . . . .” (Id., at p. 15.) The study continued by suggesting that “[t]he
reasons for the differences appear[] to be historical, i.e., that Article XVIII, section 1 and
the initiative provisions were adopted at different times and no effort was ever made to
conform their various provisions. [¶] . . . [¶ . . . In summary, there appears to be no
reason why these limitations should not be the same and stated in the same way, and the
single subject requirement seems more meaningful than the requirement that each
amendment be submitted separately.” (Id., at p. 16.) The Revision Commission’s
ensuing studies, culminating in Background Study 7, were consistent. For example, in
Background Study 7, after again describing the “liberal” single subject rule applicable to
initiatives proposing constitutional amendments (id., at p. 19), the committee’s study
repeated the observation that the “reason for the differences between initiative
amendments and amendments proposed by the Legislature seems to be historical,” and
that “no attempt seems to have been made to conform them” (ibid.), yet also observed
that “[t]here appears to be no good reason why the restrictions on both classes of
amendments should not be the same.” (Id., at p. 20.)
47
The same cannot be said with regard to Montana’s jurisprudence, however. In
State v. Alderson (Mont. 1914) 142 P. 210, the state supreme court concluded,
consistently with the majority rule, that “the unity of subject [implicitly] required by the
[state separate-vote provision] does not essentially differ from the unity of subject
required by the [state’s statutory single subject rule].” (Id., at p. 213.) In its recent
(footnote continued on following page)
55
contrast, we do not find in the sparse California case law concerning article XVIII,
section 1, any indication of support for a strict test such as the one adopted by Armatta,
supra, 959 P.2d 49, or endorsed by the Court of Appeal below. Instead, we find
indications of the opposite. As noted above, the only case in which this court addressed
the provision was our 1923 decision in Wright, supra, 192 Cal. 704 — and in that matter
we suggested, in dictum, that the provision should not be construed strictly, but instead
leniently, to allow changes to several parts of the Constitution if the changes are
reasonably germane to each other. (Id., at pp. 712-713.)
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 to the
single subject provision, even in the latter provision’s lenient, rather than strict, sense. In
(footnote continued from preceding page)
decision in Marshall, supra, 975 P.2d 325, 331, the Montana court overruled Alderson
and its progeny, in favor of the Armatta rule.
56
support, the Legislature cites the 1878-1879 debates concerning the statutory single
subject rule — a provision that already existed in article IV, section 25 of the 1849
Constitution48 and that the convention delegates eventually reaffirmed by adopting former
article IV, section 24 (current art. IV, § 9)).49 (See 2 Willis & Stockton, supra, at
pp. 796-799 [debating the statutory single subject rule]; 3 Willis & Stockton, supra, at
pp. 1269-1270 [same].) The Legislature characterizes those debates as disclosing that the
delegates “vehemently expressed concerns over impediments to legislation, encouraging
litigation and judicial second-guessing of legislative actions on the one hand versus [the
delegates’ concerns relating to] deceit, confusion and logrolling on the other.” The
Legislature contrasts these debates concerning the single subject provision with the
“complete absence of similar controversy” concerning the same delegates’ consideration
of article XVIII, section 1, and its separate-vote provision; the Legislature concludes that
this comparative silence demonstrates the delegates must have intended “no sort of single
subject requirement or limitation on the Legislature’s discretion to construct proposed
constitutional amendments as it wished . . . .”
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
48
The original provision — which was phrased as a single “object” rather than a
single “subject” limitation — read: “Every law enacted by the Legislature shall embrace
but one object, and that shall be expressed in its title . . . .” (Cal. Const. of 1849, art. IV,
§ 25.)
49
As adopted in 1879, the provision read: “Every Act shall embrace but one subject,
which subject shall be expressed in its title. But if any subject shall be embraced in an
Act which shall not be expressed in its title, such Act shall be void only as to so much
thereof as shall not be expressed in its title.” (Cal. Const., art. IV, § 24 as adopted 1879.)
Presently, as modified in 1966, the provision reads: “A statute shall embrace but one
subject, which shall be expressed in its title. If a statute embraces a subject not expressed
in its title, only the part not expressed is void.” (Cal. Const., art. IV, § 9.)
57
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 1849.50 The vigorous debate to which the Legislature alludes
concerned not the efficacy or propriety of the single subject rule per se, but instead a
collateral issue: the severability of the parts of an act that violate the legislative single
subject rule. In this regard, Delegate Freeman offered an amendment to the proposed
section, adding a clause as follows: “ ‘[B]ut if any subject shall be embraced in any Act
which shall not be expressed in its title, said Act shall be void only to so much thereof as
shall not be so expressed . . . .’ ” (2 Willis & Stockton, supra, at p. 796.) The ensuing
debate focused upon the propriety of this provision, and upon the general problem of
requiring subjects of an act to be expressed in the title of the act.51 The delegates
tentatively adopted a version of the proposed severability clause (id., at pp. 798-799) and
then, a few weeks later, rejected repeated attempts to strike the severability clause in
favor of making an entire act void if any part of it violated the single subject rule.
(3 Willis & Stockton, supra, at pp. 1269-1270.) Ultimately, the provision was adopted as
proposed by Delegate Freeman. (See ante, fn. 49.) Contrary to the Legislature’s
50
As Delegate McCallum observed: “The committee were of the opinion, that
inasmuch as this section has stood for many years, . . . we might as well let it stand as it
is.” (2 Willis & Stockton, supra, at p. 797; see also 3 Willis & Stockton, supra, at
p. 1269 [remarks of Delegate Barbour: “[T]his section is aimed at the practice of
smuggling and logrolling bills through”].)
51
See, for example, 2 Willis & Stockton, supra, at pages 797-798 (remarks of
Delegate McFarland, opposing the proposed severability clause: “I repeat that it is
impossible to express all there is in a law in its title without making the title nearly as
long as the law”); id., at page 798 (remarks of Delegates Edgerton, Laine, Johnson &
Hager, noting that similar severability language was found in the constitutions of Iowa,
Indiana, Illinois, and Oregon); id., at page 799 (remarks of Delegate Wilson, supporting
the severability clause as being consistent with “elementary” rules of appellate
adjudication).
58
suggestions, this predominating focus of the debate concerning the legislative single
subject provision provides no reason to question the delegates’ understanding of article
XVIII, section 1’s separate-vote provision — a provision that did not contain then, as it
fails to contain today, any such title requirement or severability clause.
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,
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
59
certainly should be no less demanding than the substantive limitations governing mere
legislative acts.
III
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 separate-vote
provision of article XVIII, section 1. Nor could the Legislature so contend; patently, the
two provisions are not reasonably germane to a common theme, purpose, or subject.
Accordingly, we agree with the Court of Appeal’s conclusion (although for reasons
different from those relied upon by that court) that the Legislature’s proposed submission
to the electorate of both provisions in a single measure as proposed in Resolution 103
violated the separate-vote provision of article XVIII, section 1.
IV
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
60
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, 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 postelection remedy is to
invalidate both Propositions 60 and 60A.
The Legislature, in its opening brief filed prior to the November 2004 election,
also questions the propriety of the Court of Appeal’s bifurcation remedy, arguing that
even though it had “acquiesced in this remedy in order to permit deliberative review in
this court,” as a general matter, bifurcation is “highly problematic.” The Legislature
61
asserted: “Even when done by court order, such dissection of a measure adopted by the
Legislature is inappropriate absent some express statement by the Legislature that it
would prefer this alternative to barring the measure from the ballot altogether.”
Subsequently, after the defeat of Proposition 62 and the adoption of both Propositions 60
and 60A, the Legislature modified its position, arguing in its reply brief that assuming
Resolution 103 violated the separate-vote provision, “the goal of article XVIII, section 1
was met when the ‘amendments’ were separately voted upon by the people, which
happened when the voters overwhelmingly approved each measure.” Accordingly, the
Legislature asserts, “[a]though court-mandated bifurcation of a legislative proposal is
generally not favored, this remedy was appropriate in the unique circumstances presented
here.”
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.52
(See Jones, supra, 21 Cal.4th at p. 1168 [“when an initiative measure violates the single-
subject rule, severance is not an available remedy”]; see also California Trial Lawyers
Assn. v. Eu (1988) 200 Cal.App.3d 351, 361-362 [concluding the same].)
52
As observed earlier, the provision states: “An initiative measure embracing more
than one subject may not be submitted to the electors or have any effect.” (Cal. Const.,
art II, § 8, subd. (d).) By contrast, the legislative single subject and title provision
contains an express severance clause.
62
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 1.53 Our conclusion that bifurcation is not a
remedy for violation of the separate-vote provision avoids creating such incentives or
facilitating such manipulations.
V
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
53
Justice Davis, dissenting on this issue in the Court of Appeal below, made the
same point as follows: “In future cases, the majority’s remedy would allow a faction of
those voting for a conjoined set of amendments to accomplish with stealth what could not
be secured through the legislative process; namely the separate enactment of an
amendment. Those members and their allies could do so by later persuading the
Secretary [of State] or the judiciary to extract their favored amendment for individual
consideration. [The majority’s proposed] remedy should not be invoked in the context of
the fundamental organic law of the state, where the Legislature must comply strictly with
the procedure for amendment.”
63
Court of Appeal’s bifurcation order. (Cf. Assembly v. Deukmejian (1982) 30 Cal.3d 638,
652, 669 [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.
VI
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.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
64
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
fault of the defendant, an event occurs which renders it impossible for [the appellate]
court, if it should decide the case in favor of plaintiff, to grant him any effectual relief
whatever,” the appeal is moot. (Consol. etc. Corp. v. United A etc. Workers (1946) 27
Cal.2d 859, 863; accord, e.g., Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496,
1503 [“A case becomes moot when a court ruling can have no practical impact or cannot
provide the parties with effective relief”].)1 Petitioners in the present case sought “a writ
1
The same is true in the trial court: “ ‘[A]lthough a case may originally present an
existing controversy, if before decision it has, through act of the parties or other cause,
occurring after the commencement of the action, lost that essential character, it becomes
a moot case or question which will not be considered by the court.’ ” (Wilson v. L. A.
County Civil Service Com. (1952) 112 Cal.App.2d 450, 453.) As the present action is
(footnote continued on following page)
1
of prohibition in the Court of Appeal, seeking to bar the Secretary of State from placing
Proposition 60 on the [November 2, 2004] general election ballot.” (Maj. opn., ante, at p.
4.) The election having been held, such a writ cannot issue. Thus the only relief for
which petitioners pleaded, exclusion of Proposition 60 from the ballot, can no longer be
granted, and their case is moot.
We faced an analogous situation in Lenahan v. City of Los Angeles (1939) 14
Cal.2d 128 (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.)
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
(footnote continued from preceding page)
one for an original writ in the Court of Appeal, it may technically be said to have become
moot not on appeal but in the court of original jurisdiction.
2
occurrence has been considered to render the case moot. (See Mapstead v. Anchundo
(1998) 63 Cal.App.4th 246, 273-277; Chase v. Brooks (1986) 187 Cal.App.3d 657, 661-
662; Long v. Hultberg (1972) 27 Cal.App.3d 606, 608-609.) And, as this court recently
recognized in Costa v. Superior Court (2006) 37 Cal.4th 986, 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 election the procedural claim may well be
considered moot.” (Id. at pp. 1006-1007; see also id. at pp. 1038-1039 (conc. & dis. opn.
of Werdegar, J.).) No reason is apparent why this principle, applicable to recall elections,
referenda and initiative measures, should not also apply to a legislatively proposed
constitutional amendment.
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, at p. 61.) 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.)
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
3
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), 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, at p. 7.) 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, at p. 63.) 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, faded into
insubstantiality.” (Lenahan, supra, 14 Cal.2d at p. 134.)
4
III. Conclusion
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; People v. Eubanks (1996) 14 Cal.4th 580,
584, fn. 2.) 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.
WERDEGAR,
J.
5
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), 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.
1
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, 1968) Com. on Revised Provisions, p. 109.) The Legislature
rejected the commission’s proposal for reasons that are unclear.
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, at p. 28.) The term “revision,” so the argument would go, puts voters on notice that
2
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.) 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.) 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 directly the ‘substantial
entirety’ of the Constitution by the deletion or alteration of numerous existing provisions
3
may well constitute a revision thereof. However, even a relatively simple enactment may
accomplish such far reaching changes in the nature of our basic governmental plan as to
amount to a revision also.” (Id. at p. 223; see also Raven v. Deukmejian, supra, 52 Cal.3d
at pp. 350-352.) Under this conventional approach, the two different amendments found
in Resolution 103 are neither qualitatively so extensive nor quantitatively so far-reaching
as to constitute a constitutional revision. Indeed, courts have been reluctant to find that
even multiple significant constitutional changes combined into a single voter initiative
constitute a revision. (See, e.g., Brosnahan v. Brown (1982) 32 Cal.3d 236, 242-243,
260-261 [Proposition 8, making constitutional changes in the areas of criminal restitution,
safe schools, admissibility of relevant evidence, bail, and use of prior felony convictions
for impeachment and sentencing purposes, is not a constitutional revision].)
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’
4
— 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, at p. 39.) 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 (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.
(Mo. 1902) 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
constitutional revision. The argument in favor of Proposition 7, authorizing such
revisions for the first time, stated: “Most state legislatures are free to propose to the
people extensive and significant constitutional changes, whether drawn up by an expert
commission or a legislative committee. In the past decade alone ten states, among them
New York, Pennsylvania and Texas, have approached constitutional improvement by this
method. Short of a constitutional convention, California has no way to make coordinated
broad changes to renovate outdated sections and articles in its Constitution.” (Ballot
Pamp., Gen. Elec. (Nov. 6, 1962) argument in favor of Prop. 7, p. 13.)
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
5
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, at pp. 23-29.)
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
6
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 reform
packages in the form of revisions, while still banning the practice of logrolling ⎯
explicitly in the case of constitutional amendments, implicitly in the case of constitutional
revisions, whose very purpose and pedigree are inimical to such a practice.
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
7
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.) 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 (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 majority that invalidation of those
measures at this point would be inappropriate.
MORENO, J.
8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Californians for an Open Primary v. McPherson
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 121 Cal.App.4th 222
Rehearing Granted
__________________________________________________________________________________
Opinion No. S126780
Date Filed: May 25, 2006
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Attorneys for Appellant:
Strumwasser & Woocher, Fredric D. Woocher, Michael J. Strumwasser and Aimee E. Dudovitz for Petitioners.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Louis R. Mauro, Assistant Attorney General, Catherine M. Van Aken and Geoffrey
L. Graybill, Deputy Attorneys General, for Respondent.
Diane F. Boyer-Vine, Jeffrey A. DeLand, Marian M. Johnston, Dulcinea A. Grantham; Remcho, Johansen &
Purcell, Kathleen J. Purcell, Robin B. Johansen, Thomas A. Willis, Margaret R. Prinzing and Karen Getman for
Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Fredric D. Woocher
Strumwasser & Woocher
100 Wilshire Boulevard, Suite 1900
Santa Monica, CA 90401
(310) 576-1233
Robin B. Johansen
Remcho, Johansen & Purcell
201 Dolores Avenue
San Leandro, CA 94577
(510) 346-6200
Opinion Information
| Date: | Docket Number: |
| Thu, 05/25/2006 | S126780 |
Parties
| 1 | Californians For An Open Primary (Petitioner) Represented by Fredric D. Woocher Strumwasser & Woocher, LLP 100 Wilshire Boulevard, Suite 1900 Santa Monica, CA |
| 2 | Mcpherson, Bruce (Respondent) Represented by Attorney General - Sacramento Office P.O. Box 944255 P.O. Box 944255 Sacramento, CA |
| 3 | Legislature Of The State Of California (Real Party in Interest) Represented by Kathleen J. Purcell Remcho Johansen & Purcell 201 Dolores Avenue San Leandro, CA |
| 4 | Legislature Of The State Of California (Real Party in Interest) Represented by Diane Frances Boyer-Vine Office of the Legislative Counsel 925 "L" Street, Suite 500 Sacramento, CA |
| 5 | Legislature Of The State Of California (Real Party in Interest) Represented by Robin B. Johansen Remcho Johansen & Purcell 201 Dolores Avenue San Leandro, CA |
| 6 | Legislature Of The State Of California (Real Party in Interest) Represented by Marian Mcclure Johnston Office of the Legislative Counsel 925 "L" Street, Suite 900 Sacramento, CA |
| 7 | Tobey, Nick (Petitioner) Represented by Aimee Elizabeth Dudovitz Strumwasser & Woocher, LLP 100 Wilshire Boulevard, Suite 1900 Santa Monica, CA |
| 8 | Tobey, Nick (Petitioner) Represented by Michael J. Strumwasser Strumwasser & Woocher LLP 100 Wilshire Boulevard, Suite 1900 Santa Monica, CA |
| 9 | Tobey, Nick (Petitioner) Represented by Fredric D. Woocher Strumwasser & Woocher, LLP 100 Wilshire Boulevard, Suite 1900 Santa Monica, CA |
| Disposition | |
| May 25 2006 | Opinion: Judgment vacated |
| Dockets | |
| Aug 3 2004 | Record requested Overnight Mail |
| Aug 3 2004 | Petition for review with request for stay filed (civil) by counsel for petnrs. (Calif. for an Open Primary, et al.) |
| Aug 3 2004 | Opposition requested by telephone from real party in interest. Oppo is due by 4pm, Thursday, August 5, 2004, and may be faxed to our SF office. |
| Aug 4 2004 | Received Court of Appeal record 1 doghouse |
| Aug 4 2004 | Received: letter from Atty General (jcounsel for Sec of State) re confirmation that deadline to sent election material to the State Printer is Aug 9, 2004 and attachments. |
| Aug 5 2004 | Filed: by (Atty Gen.) counsel for respondent (Secy. of State) Letter in response to Petiton for Review. |
| Aug 5 2004 | Filed: letter from Atty Gen. re: confirmation of printing deadline date of August 9, 2004. |
| Aug 5 2004 | Filed: by counsel for petnrs. letter re: Secy.of State's letter to the court regarding verification of deadline. |
| Aug 5 2004 | 2nd petition for review filed by counsel for RPI (Legislature of the State of Calif.) with **Answer to Petition for Review** under same cover. |
| Aug 5 2004 | Association of attorneys filed for: RPI (Legislature of the State of Calif.) associates the Law firm of Remcho, Johnsen & Purcell |
| Aug 6 2004 | Answer to petition for review filed by counsel for petitioners (Californians for an Open Primary and Nick Tobey). |
| Aug 9 2004 | Reply to answer to petition filed by counsel for RPI (Legislature of the State of Calif.) |
| Aug 9 2004 | Filed: by counsel for RPI (Legislature of the State of Calif.) Errata to Reply to Answer to Petition., page 6) |
| Aug 9 2004 | Petition for review granted (civil case) Petitions for review GRANTED. At this preliminary point in the proceedings before this court, 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. Nonetheless, in light of (1) the novelty and difficulty of the constitutional issues presented and the importance of ensuring that our decision is rendered after full and adequate briefing, oral argument and deliberation, (2) the imminence of the deadline for submitting the Voter Information Guide for the November 2004 election to the State Printer, and (3) the concerns expressed by the Secretary of State in a letter to this court filed on his behalf by the Attorney General on August 6, 2004, we direct the Secretary of State to place Senate Constitutional Amendment No. 18 of the 2003-04 Regular Session on the ballot for the November 2004 election as Propositions 60 and 60A, in the manner directed by the Court of Appeal. Accordingly, the request for a stay of the Court of Appeal's placement order, which request was included in the petition for review of Californians for an Open Primary and Nick Tobey, filed August 3, 2004, is denied. Votes:George, C.J., Kennard, Baxter, Chin and Moreno, JJ. 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 on the ballot for the November 2004 election as Propositions 60 and 60A, in the manner directed by the Court of Appeal. Votes: Werdegar and Brown, JJ. |
| Aug 12 2004 | Order filed For purposes of briefing and oral argument before this court, real party in interest the Legislature of the State of California shall be designated petitioner in this proceeding, and Californians for an Open Primary et al. shall be designated the opposing party. (Cal. Rules of Court, rule 29.1(a)(6).) |
| Aug 16 2004 | Request for extension of time filed counsel for petitioner (Legislature of the State of Calif.) requests extension of time to October 8, 2004 to file the opening brief on the merits.) |
| Aug 19 2004 | Extension of time granted to and including October 8, 2004 for petitioner to file opening brief on the merits. No further extension of time is anticipated. |
| Aug 27 2004 | Filed letter from: counsel for (Legislature of the State of Calif.) requesting that this Court decline to order publication of the opinion. |
| Sep 29 2004 | Note: RECORDS SENT TO CAL CO-ORD. OFFICE 6, 7, Cross-petn.and Answer, Pet. for Writ of Mandate, Answer to Writ = 2, Petition Replication, Appendix of Exhibits for (RPI) = 2 vols., Appendix of Exhibits for Petnr. = 2 vols |
| Oct 8 2004 | Opening brief on the merits filed by counsel for petnr. (Legislature of the State of Calif.) |
| Oct 8 2004 | Request for judicial notice filed (granted case) by counsel for petnr. w/ Appendices (3 vols) and Declars. of Douglas G. Denton and Dulcinea A. Grantham. |
| Oct 27 2004 | Request for extension of time filed counsel for petnr. (Califs. for an Open Primary, etc.) requests extension of time to December 7, 2004 to file the answer brief on the merits. |
| Nov 8 2004 | Extension of time granted Petitioners time to serve and file the answer brief on the merits is extended to and including December 7, 2004. |
| Dec 2 2004 | Request for extension of time filed by counsel for petnr. (Califs. for an Open Primary, etc.) requesting to January 6, 2005 to file the answer brief on the merits. |
| Dec 10 2004 | Extension of time granted Petitioner's time to serve and file the answer brief on the merits is extended to and and including January 6, 2005. |
| Jan 5 2005 | Request for extension of time filed counsel for petnrs. request extension of time to January 13, 2005 to file the answer brief on the merits |
| Jan 10 2005 | Extension of time granted petitioner's time to serve and file the answer brief is extended to and including January 13, 2005. |
| Jan 14 2005 | Answer brief on the merits filed by counsel for (Calif. for an Open Primary and Nick Tobey) (40.1(b) |
| Jan 24 2005 | Request for extension of time filed counsel for RPI (Legis. of the State of Calif.) requests extension of time to February 16, 2005, to file the reply brief. |
| Feb 1 2005 | Extension of time granted Real Party in Interest time to serve and file the reply brief is extended to and including February 16, 2005. |
| Feb 7 2005 | Filed: by counsel for RPI (Legislature of the State of Calif.) to file oversized Reply Brief. |
| Feb 10 2005 | Order filed On application of Real Party in Interest and good cause appearing, it is ordered that permission to file the over-sized reply brief on the merits is hereby granted. |
| Feb 16 2005 | Reply brief filed (case fully briefed) by counsel for RPI (Legisl. of the State of Calif.) |
| Feb 16 2005 | Request for judicial notice filed (granted case) by counsel for RPI (Legisl. of the State of Calif.) |
| Jul 8 2005 | Order filed The above entitled matter is retitled as follows: CALIFORNIANS FOR AN OPEN PRIMARY et al., Petitioners, v. BRUCE McPHERSON, as Secretary of State etc., Respondent; LEGISLATURE OF THE STATE OF CALIFORNIA, Real Party in Interest. |
| Feb 8 2006 | Case ordered on calendar March 8, 2006, at 9:00 a.m., in San Francisco |
| Feb 16 2006 | Filed letter from: Robin B. Johansen, counsel for real party Legislature of the State of California "... real party in interest in the above-captioned case, hereby stipulates to Justice Chin's participation in the case even though he will not be present at oral argument. ..." |
| Feb 17 2006 | Request for judicial notice granted The requests for judicial notice filed by the Legislature on October 8, 2004, and February 16, 2005, are granted. |
| Feb 21 2006 | Note: Mail returned and re-sent March Calendar resent to Marian McClure Johnston, Office of the Legislative Counsel |
| Feb 21 2006 | Filed letter from: Fredric D. Woocher, counsel for petitioenrs Californians for an Open Primary and Nick Tobey "... I am authorized on behalf of my clients, ..., to stipulate to Justice Chin's participation in the case even though he is unable to be present at oral argument." |
| Mar 2 2006 | Received: Letter from The Office of the Atty. Gen. to inform the court that no one will be representing their office at the oral argument scheduled on 3-8-06. |
| Mar 6 2006 | Notice of substitution of counsel Robin B. Johansen will argue the case for Legislature of the State of California, RPI. Kathleen J. Purcell won't be able to attend due to a family emergency. |
| Mar 8 2006 | Cause argued and submitted |
| May 25 2006 | Opinion filed: Judgment vacated and the matter is Remanded to the Court of Appeals with directions. OPINION BY: George, C.J. --- joined by : Kennard, Baxter, Chin, Corrigan, JJ. CONCURRING OPINION BY: Werdegar, J. CONCURRING OPINIOIN BY: Moreno, J. |
| Jul 19 2006 | Remittitur issued (civil case) |
| Jul 25 2006 | Note: Issued Amended Remittitur (Re: Costs) |
| Aug 1 2006 | Received: from CA/3 receipt for remittitur |
| Briefs | |
| Oct 8 2004 | Opening brief on the merits filed |
| Jan 14 2005 | Answer brief on the merits filed |
| Feb 16 2005 | Reply brief filed (case fully briefed) |
