hjta-bowen respondent's brief
TRANSCRIPT
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT _____________________________ )
HOWARD JARVIS TAXPAYERS ) ASSOCIATION, et al., )
) Plaintiffs and Appellants ) No. C060441
) v. ) )
DEBRA BOWEN, SECRETARY ) OF STATE, et al., ) )
Defendants and Respondents. ) _____________________________ )
On Appeal from the Superior Court in and for the County of Sacramento
Superior Court No. 34-2008-80000048-CU-WM-GDS The Honorable Michael P. Kenny
REAL PARTY IN INTEREST/RESPONDENT LEGISLATURE’S
BRIEF
DIANE F. BOYER-VINE Legislative Counsel State Bar No. 124182 ROBERT A. PRATT Principal Deputy Legislative Counsel State Bar No. 137704 MARIAN M. JOHNSTON Deputy Legislative Counsel State Bar No. 061643 Office of Legislative Counsel 925 L Street, Suite 900 Sacramento, California 95814 Telephone: (916) 341-8186 Facsimile: (916) 341-8395 Attorneys for Real Party in Interest/Respondent California State Legislature
TABLE OF CONTENTS INTRODUCTION ............................................................................................ 1 ARGUMENT .................................................................................................... 3 I THE APPEAL SHOULD BE DISMISSED AS MOOT......................... 3 II THE CALIFORNIA STATE LEGISLATURE POSSESSES ALL
LEGISLATIVE POWER NOT LIMITED BY THE STATE CONSTITUTION ................................................................................... 7
A. THE LEGISLATURE MAY LEGISLATE WHEREVER IT IS
NOT CONSTITUTIONALLY RESTRAINED .......................... 7 B. THE LEGISLATURE MAY SUPERSEDE PRIOR
STATUTES; NEW STATUTES CAN ALWAYS BE ENACTED ................................................................................... 8
C. SECTIONS 3 AND 4 OF ARTICLE II COMMIT THE
ELECTION PROCESS TO THE LEGISLATURE AND DO NOT RESTRICT IT FROM DETERMINING HOW TO PLACE LEGISLATIVE MEASURES ON THE BALLOT ..... 11
D. STATUTORILY SPECIFIED BALLOT LANGUAGE DOES
NOT INTERFERE WITH FAIR ELECTIONS ........................ 14 E. BOND MEASURES SUBMITTED BY THE LEGISLATURE
TO THE ELECTORS ARE NOT SUBJECT TO THE PROVISIONS GOVERNING INITIATIVES AND REFERENDA ............................................................................ 18
F. THE CONSTITUTION DOES NOT REQUIRE THAT ONLY
THE ATTORNEY GENERAL DRAFT BALLOT LANGUAGE .............................................................................. 22
i
ii
III THE RIGHT TO JUDICIAL REVIEW GUARANTEES THAT THE LEGISLATURE DOES NOT MISUSE ITS POWER TO DRAFT
ELECTIONS MATERIALS ................................................................ 28 A. JUDICIAL REVIEW ENSURES THAT BALLOT
LANGUAGE SPECIFIED BY STATUTE IS NOT FALSE OR MISLEADING ........................................................................... 28
B. THE LEGISLATURE MAY NOT UNILATERALLY
REPEAL THE AVAILABILITY OF JUDICIAL REVIEW .... 31 IV THE LEGISLATURE’S PRACTICE OF DRAFTING BALLOT
LANGUAGE IS NOT EXTRAORDINARY ...................................... 45 V NOTHING WARRANTS HEIGHTENED SCRUTINY OF
CHAPTER 267 OF THE STATUTES OF 2008 .................................. 47 CONCLUSION ............................................................................................... 49
TABLE OF AUTHORITIES
CASES Bertino v. Sanborn
(1934) 136 Cal.App. 247 ................................................................. 6
Boyd v. Jordan (1934) 1 Cal.2d 468....................................................................... 47
Bradley v. Voorsanger
(1904) 143 Cal. 214......................................................................... 6 Cadence Design Systems, Inc. v. Avant! Corp.
(2002) 29 Cal.4th 215...................................................................... 5 California School Boards Assn. v. State of California
(2009) 171 Cal.App.4th 1183.......................................................... 8 California Teachers Assn. v. Hayes
(1992) 5 Cal.App.4th 1513................................................ 36, 37, 38 Californians for an Open Primary v. McPherson
(2006) 38 Cal.4th 735.................................................................. 5, 6 Canaan v. Abdelnour
(1985) 40 Cal.3d 703..................................................................... 15 Castro v. State of California
(1970) 2 Cal.3d 223....................................................................... 15 Cinnamon Square Shopping Center v. Meadowlark Enterprises
(1994) 24 Cal.App.4th 1837............................................................ 5 City of Sacramento v. State of California
(1984) 156 Cal.App.3d 182........................................................... 22 Clark v. Jordan
(1936) 7 Cal.2d 248....................................................................... 48
iii
Collins v. Riley (1944) 24 Cal.2d 912..................................................................... 44
County of Los Angeles v. State of California
(1984) 153 Cal.App.3d 568............................................................. 9 Dimmick v. Dimmick
(1962) 58 Cal.2d 417....................................................................... 4 East Bay Municipal Utility Dist. v. Appellate Dept. of Superior Court
(1979) 23 Cal.3d 839..................................................................... 12 Environmental Protection Information Center, Inc. v. Maxxam Corp.
(1992) 4 Cal.App.4th 1373.............................................................. 4 Fair v. Hernandez
(1981) 116 Cal.App.3d 868........................................................... 15 Fletcher v. Comm. on Judicial Performance
(1998) 19 Cal.4th 865.................................................................... 23 Gould v. Grubb
(1975) 14 Cal.3d 661............................................. 12, 13, 14, 15, 48 Greene v. Marin County Flood Control and Water Cons. Dist.
(2009) 171 Cal.App.4th 1478........................................................ 15 Griset v. Fair Political Practices Com.
(1994) 8 Cal.4th 851...................................................................... 15 Hodges v. Superior Court
(1999) 21 Cal.4th 109.................................................................... 34 Huening v. Eu
(1991) 231 Cal.App.3d 766............................................... 32, 33, 42 Hull v. Rossi
(1993) 13 Cal.App.4th 1763.......................................................... 24
iv
In re Collie (1952) 38 Cal.2d 396, cert. denied sub nom. Collie v. Heinze (1953) 345 U.S. 1000 ..................................................................... 9
Knight v. Superior Court
(2005) 128 Cal.App.4th 14...................................................... 35, 36 Knoll v. Davidson
(1974) 12 Cal.3d 335..................................................................... 25 Lenahan v. City of Los Angeles
(1939) 14 Cal.2d 128....................................................................... 6 Lungren v. Superior Court
(1996) 48 Cal.App.4th 435................................................ 16, 26, 27 Methodist Hosp. v. Saylor
(1971) 5 Cal.3d 685....................................................................... 44 Mines v. Del Valle
(1927) 201 Cal. 273....................................................................... 16 Pacific Legal Foundation v. Brown
(1981) 29 Cal.3d 168..................................................................... 44 Pack v. Vartanian
(1965) 232 Cal.App.2d 466............................................................. 5 People v. Briceno
(2004) 34 Cal.4th 451.............................................................. 34, 35 People v. Cooper
(2002) 27 Cal.4th 38...................................................................... 35 People v. Gordon
(1944) 62 Cal.App.2d 268............................................................. 27 People v. Hayne
(1890) 83 Cal. 111......................................................................... 27
v
People v. Shearer
(1866) 30 Cal. 645......................................................................... 22 People v. 8,000 Punchboard Card Devices
(1983) 142 Cal.App.3d 618........................................................... 27 Robert L. v. Superior Court
(2003) 30 Cal.4th 894.................................................................... 34 San Francisco Forty-Niners v. Nishioka
(1999) 75 Cal.App.4th 637............................................................ 25 Songstad v. Superior Court
(2001) 93 Cal.App.4th 1202, 1205.............................. 22, 23, 24, 25 Stanson v. Mott
(1976) 17 Cal.3d 206............................................................... 16, 17 State Personnel Bd. v. Dept. of Personnel Admin.
(2005) 37 Cal.4th 512................................................................ 8, 12 Strauss v. Horton
(2009) 46 Cal.4th 364.................................................................... 26 Vargas v. City of Salinas
(2009) 46 Cal.4th 1........................................................................ 28 White v. Davis
(2003) 30 Cal.4th 528.................................................................... 14 Washburn v. City of Berkeley
(1987) 195 Cal.App.3d 578........................................................... 24
CALIFORNIA CONSTITUTION
California Constitution, Sec. 3, Art. II .... 11, 12, 13, 14, 21, 27, 38, 43 California Constitution, Sec. 4, Art. II ...................... 11, 12, 13, 14, 21
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California Constitution, Sec. 7, Art. II .............................................. 15 California Constitution, Sec. 8, Art. II ........................................ 19, 21 California Constitution, Sec. 9, Art. II .............................................. 19 California Constitution, Sec. 10, Art. II . 9, 11, 18, 19, 20, 27, 31, 34, 43 California Constitution, Sec. 11, Art. II ............................................ 19 California Constitution, Sec. 12, Art. II ...................................... 19, 21 California Constitution, Sec. 3, Art. III ............................................... 9 California Constitution, Sec. 1, Art. IV...................................... 7, 9, 37
California Constitution, Sec. 8, Art. IV.............................................. 18 California Constitution, Sec. 8.5, Art. IV........................................... 21 California Constitution, Sec. 10, Art. IV............................................ 18 California Constitution, Sec. 12, Art. IV............................................ 18 California Constitution, Art. XIIID ................................................... 15 California Constitution, Sec. 1, Art. XVI .................................... 13, 14 California Constitution, Sec. 2, Art. XVI ...................................... 1, 18 California Constitution, Sec. 1, Art. XVIII ....................................... 18 California Constitution, Sec. 2, Art. XVIII ....................................... 18
CALIFORNIA STATUTES
Ch. 7, Stats. 2009-10 (3rd Ex.) ....................................................... 3, 45
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Ch. 23, Stats. 1961.............................................................................. 40 Ch. 44, Stats. 2006................................................................................ 1 Ch. 71, Stats. 2004................................................................................ 1 Ch. 267, Stats. 2008..................................................................... passim Ch. 697, Stats. 2002.............................................................................. 1 Elections Code Section 3530.............................................................. 40 Elections Code Section 3531.............................................................. 40 Elections Code Section 3564.1..................................................... 32, 33 Elections Code Section 9003.............................................................. 43 Elections Code Section 9004.............................................................. 20 Elections Code Section 9040........................................................ 10, 21 Elections Code Section 9043.............................................................. 10 Elections Code Section 9044.............................................................. 10 Elections Code Section 9061.............................................................. 10 Elections Code Section 9087.............................................................. 24 Elections Code Section 9092.................................................. 27, 29, 29 Elections Code Section 9106.............................................................. 23 Elections Code Section 9160.............................................................. 24 Elections Code Section 9280.............................................................. 24 Elections Code Section 13115............................................................ 10
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Elections Code Section 13117............................................................ 10 Elections Code Section 13247............................................................ 10 Elections Code Section 13281................................................ 10, 20, 41 Elections Code Section 13282............................................................ 10 Evidence Code Section 451................................................................ 46 Evidence Code Section 459................................................................ 46 Family Code Section 297.5 .......................................................... 35, 36 Government Code Section 9105......................................................... 23 Government Code Section 12519....................................................... 22 Government Code Section 81001....................................................... 41 Government Code Section 81002....................................................... 41 Government Code Section 81012............................... 31, 32, 33, 34, 43 Government Code Section 88000....................................................... 32 Government Code Section 88001....................................................... 39 Government Code Section 88002................... 33, 39, 40, 41, 42, 44, 45 Government Code Section 88003........................................... 24, 41, 44 Government Code Section 88004....................................................... 42 Government Code Section 88005....................................................... 40 Government Code Section 88005.5.............................................. 41, 44 Government Code Section 88006............................... 27, 29, 31, 42, 45
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x
Government Code Section 88007....................................................... 42 Political Code Section 1197b ....................................................... 47, 48
BALLOT MEASURES
Proposition 1A
(November 4, 2008, Statewide General Election Ballot) ... 1, 10, 11
Proposition 22 (Statewide Primary Election) ........................................................ 36
Proposition 98
(Statewide Primary Election) .................................................. 36, 37
INTRODUCTION
Acts providing for the sale of state general obligation bonds must be
submitted to the electors of the State of California for their approval. Cal.
Const., Art. XVI, § 2, subd. (a). This appeal concerns the authority of the
Legislature to enact statutes establishing the procedures by which bond
measures are presented to the electors.
In order to fund a high-speed train system, the Legislature passed, by
a two-thirds vote of each house, and the Governor signed, a statute placing
Proposition 1A on the ballot for the November 4, 2008, statewide general
election. This measure, upon approval of the voters, permitted bonds to be
sold to finance this system. Ch. 267, Stats. 2008.1
In this statute, the Legislature provided specific language for the
ballot label and for the ballot title and summary for the bond measure, and
directed that this language appear on the ballot notwithstanding any other
provision of law. § 11. The statute also provided a public examination 1 All further unidentified references to sections will be to sections of Chapter 267 of the Statutes of 2008. A copy of this act is included in pages 12-28 of the Exhibits attached to Legislature’s Request for Judicial Notice (LRJN 12-28). The proposal for a high-speed train system was initiated in 2002, with a proposal for a bond measure to be included on the November 2, 2004, statewide general election ballot. Ch. 697, Stats. 2002. The vote was later continued to the November 6, 2006, statewide general election. Ch. 71, Stats. 2004. The election date was then continued again to the November 4, 2008, statewide general election. Ch 44, Stats. 2006. Finally, AB 3034, chaptered as Chapter 267 of the Statutes of 2008, specified how the bond measure was to appear on the November 4, 2008, statewide general election ballot. This is the act at issue in this case.
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period for the public to review the language and, if warranted, seek judicial
review.
Appellants used this opportunity to file a petition for writ of mandate
challenging one sentence in the ballot label and one sentence in the ballot
summary; they also challenged the authority of the Legislature to mandate
this language, naming the California State Legislature as real party in
interest. Clerk’s Transcript (CT) 1-9, 62-72. The Legislature opposed the
petition (CT 187-202), along with the respondent and the other real parties in
interest. CT 203-217.
The trial court entered judgment modifying, in one respect, the
language specified in the statute, but otherwise denying the petition. It
found that the Legislature acted lawfully in establishing the procedures for
the bond measure to be presented to the electors and in enacting a statute
providing specific language for the ballot label and for the ballot title and
summary. CT 227-231. The voters then approved this bond measure.
http://www.sos.ca.gov/elections/sov/2008_general/contents.htm.
This appeal solely involves the latter portion of the judgment,
concerning the constitutionality of the statute that directed how this one
bond measure would be presented to the electors. The appeal should be
dismissed as moot. Appellants asked for no relief other than a change in the
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ballot pamphlet language. The election has occurred, and the bond measure
was approved. Chapter 267 of the Statutes of 2008 has no further effect.
Alternatively, the judgment should be affirmed. The Legislature chose
to replace various existing statutory provisions that would otherwise have
governed the submission of this measure to the electors, and to establish
alternative statutory procedures for this measure.2 In doing so, the
Legislature acted well within its constitutional authority.
ARGUMENT
I
THE APPEAL SHOULD BE DISMISSED AS MOOT
The election is over, and the bond measure has been approved by the
voters. http://www.sos.ca.gov/elections/sov/2008_general/contents.htm.
Chapter 267 of the Statutes of 2008 is therefore obsolete; it has no further
force or effect beyond the specific bond measure as approved at the 2 The timing of the enactment of measures to be placed on the ballot is frequently problematic, given the delay often arising from the need to attain a two-thirds vote consensus within each house of the Legislature for passage of a bond measure, and the logistical demands on the Secretary of State in preparing for an election (e.g., the public review period, the printing of materials, and the distribution of overseas ballots in time to receive them back by the date of the election). In light of these factors, the Legislature’s decision to forego the lengthy time period usually required to await draft ballot language from the Attorney General is understandable. For example, Chapter 267 of the Statutes of 2008 was enacted on August 26, 2008, LRJN 12, to be voted on in the November 4, 2008 election. Chapter 7 of the Statutes of 2009 of the 2009-10 Third Extraordinary Session was enacted on February 20, 2009, LRJN 1, for a special election on May 19, 2009.
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November 4, 2008, election.
Appellants recognized the limited effectiveness of the statute in
framing their prayer for relief, as the only remedy they requested was (1)
that the Secretary of State be ordered to request the Attorney General to draft
an alternative ballot label and ballot title and summary for the bond measure
and (2) that one sentence be removed from the ballot label and ballot
summary. CT 9. They requested no other relief, and they did not and are
not asking to have this Court invalidate the election or enjoin the issuance of
the bond. Appellants’ Opening Brief (AOB), p. 4.
Appellants now seek relief never requested below, as they ask this
Court to “prohibit[] the legislature from writing the impartial descriptions
and analyses of its own ballot measures.” AOB, p. 19. Appellants cite no
authority supporting their attempt to broaden their request for relief, and
case law establishes that relief may not be granted on appeal that exceeds the
relief requested in the trial court. “It is settled that points not raised in the
trial court will not be considered on appeal. [Citations.] This rule precludes
a party from asserting on appeal claims to relief not asserted in the trial
court.” Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422. This rule was
applied in Environmental Protection Information Center, Inc. v. Maxxam
Corp. (1992) 4 Cal.App.4th 1373, 1381, to hold that appellants who had
4
only pled a petition for writ of mandate were not entitled to declaratory relief
on appeal. See also Cinnamon Square Shopping Center v. Meadowlark
Enterprises (1994) 24 Cal.App.4th 1837, 1884; Pack v. Vartanian (1965)
232 Cal.App.2d 466, 475.
Appellants are apparently relying on cases such as Cadence Design
Systems, Inc. v. Avant! Corp. (2002) 29 Cal.4th 215, 218, fn.2, which
explains that courts may proceed to decide the issues in a moot case where
those issues are of continuing public interest and are likely to recur.
However, appellants admit they “are not asking to have the election
invalidated or issuance of the bond enjoined.” AOB, p. 4. Therefore, this
case is unlike Californians for an Open Primary v. McPherson (2006) 38
Cal.4th 735, in which the California Supreme Court held that an election
challenge was not moot. As that Court explained, because the appellants in
that case sought “invalidation of the two measures enacted by the voters, the
remedy issue that is presented remains alive and is not moot.” Id., at 742.
Here, on the other hand, because appellants are not seeking to
invalidate the election and prayed for no relief other than that the ballot
materials for the November election last year be changed, the case is moot.
Appellants are not entitled to judicial resolution of the diffuse range of
issues that they now seek to raise at the appellate level, nor does any aspect
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of this matter addressed by the trial court warrant the Court’s acceptance of
those issues for consideration. As explained in Lenahan v. City of Los
Angeles (1939) 14 Cal.2d 128, 134, “the time of the court should not be
engaged in resolving abstract questions not directly affecting the rights of
the parties.” There, the court dismissed as moot an appeal from an action
seeking to enjoin an election that had already been held. See also Bradley v.
Voorsanger (1904) 143 Cal. 214, 216; Bertino v. Sanborn (1934) 136
Cal.App. 247, 247-248 (“Where abstract questions only are involved and the
issues have become moot as to the acts commanded to be performed, an
appellate court will not retain jurisdiction.”). “Where the plaintiffs have
challenged only the procedures leading to the recall election or to the
placement of the referendum measure on the election ballot, and sought only
to prevent the election or remove the measure from the ballot, the election's
actual occurrence has been considered to render the case moot.”
Californians for an Open Primary, 38 Cal.4th at 784 (Werdegar, J.,
concurring).
Because appellants’ petition only sought to amend the ballot materials
before the November election; because those materials, as amended by the
trial court, were distributed to the voters; because that election is now in the
6
past; and because appellants are not seeking to invalidate the results of that
election, this appeal should be dismissed as moot.
II
THE CALIFORNIA STATE LEGISLATURE POSSESSES ALL LEGISLATIVE POWER NOT LIMITED
BY THE STATE CONSTITUTION
A. THE LEGISLATURE MAY LEGISLATE WHEREVER IT IS NOT CONSTITUTIONALLY RESTRAINED
The legislative power of the state is vested in the Legislature, except
for the powers of initiative and referendum, which are reserved to the
people. Cal. Const., Art. IV, § 1.3 And, as explained in many cases, the
California Legislature has all legislative power not restricted by the
California Constitution, and all doubts as to the extent of the Legislature’s
power must be resolved in favor of the choices made by the Legislature.
Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. Two important consequences flow from this fact. First, the entire law-making authority of the state, except the people's right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly or by necessary implication denied to it by the Constitution. In other words, we do not look to the Constitution to determine whether the legislature is authorized to do an act, but only to see if it is prohibited. [¶] Secondly, all intendments favor the exercise of the Legislature's plenary authority ….
3 All further references to articles are to articles of the California Constitution.
7
State Personnel Bd. v. Dept. of Personnel Admin. (2005) 37 Cal.4th
512, 523 (internal quotation marks and citations omitted). See also
California School Boards Assn. v. State of California (2009) 171
Cal.App.4th 1183, 1206.
Thus, where there are no constitutional restrictions, the Legislature
has plenary power. Here, the Legislature enacted specific procedures
governing placing the high-speed train system bond measure before the
electors, and, as discussed below, nothing in the Constitution precluded the
Legislature from doing so.
The Legislature’s power to provide the ballot language by statute and
to otherwise establish the procedures for presenting the bond measure to the
electors must be respected.
B. THE LEGISLATURE MAY SUPERSEDE PRIOR STATUTES; NEW STATUTES CAN ALWAYS BE ENACTED Appellants complain because previously enacted statutes establishing
general procedures for submitting legislative measures to the electors were
superseded here. AOB, p. 12. But, the California Constitution does not
preclude the Legislature from choosing to supersede prior statutory
procedures and enacting a statute establishing different procedures
8
exclusively for this bond measure.4 This was within the Legislature’s
legislative power, which may be exercised solely by the Legislature, and not
by the courts. Art, III, § 3; Art. IV, § 1. A court may not, of course, order
the Legislature to adopt specific statutes, as this would violate the separation
of powers doctrine. Art. III, § 3.
In objecting to the Legislature’s decision to enact new procedures
superseding those previously adopted, appellants apparently fail to recognize
that “one legislative body cannot limit or restrict its own power or that of
subsequent Legislatures and that the act of one Legislature does not bind its
successors.” In re Collie (1952) 38 Cal.2d 396, 398, cert. den. sub nom.
Collie v. Heinze (1953) 345 U.S. 1000. See also County of Los Angeles v.
State of California (1984) 153 Cal.App.3d 568, 573 (“one legislature cannot
limit or restrict its own power or that of successor legislatures”).
The Legislature is authorized to enact new statutes that differ from
previously enacted statutes. This is precisely what the Legislature did in
enacting Chapter 267 of the Statutes of 2008. The Legislature decided to
establish a new procedure for this chapter to replace those previously
enacted and generally applicable to legislative measures submitted to the
4 The Legislature is restricted by subdivision (c) of Section 10 of Article II in the manner it may amend initiative statutes, but, as discussed below, that restriction does not apply here.
9
electors, and that decision must be respected.
Specifically, the Legislature decided:
• “[N]otwithstanding the requirements of Sections 9040, 9043, 9044, and 9061 of the Elections Code or any other provision of law,” the bond measure would be submitted to the electors at the November 4, 2008, general election, § 11, subd. (a); • “Notwithstanding Sections 13115 and 13117 of the Elections Code,” the measure would be placed on the ballot as Proposition 1A, § 11, subd. (b); • “Notwithstanding any other provision of law,” the ballot label would be as stated, § 11, subd. (c); • “Notwithstanding Sections 13247 and 13281 of the Elections Code,” the Attorney General could not change that language, except to include a financial impact summary, § 11, subd. (d); • “Notwithstanding any other provision of law,” the ballot title and summary would be as stated, §11, subd. (f)(1); • “Notwithstanding any other provision of law,” the Attorney General could not change that language, except to include a financial impact summary, § 11, subd. (f)(2); and • “Notwithstanding Section 13282 of the Elections Code or any other provision of law,” the public examination period and time to seek a writ of mandate would be 8 days, § 11, subd. (h).
These procedures were expressly enacted by Chapter 267 of the
Statutes of 2008 and superseded those previously established by statute, and
there is no claim that these new procedures were not followed.
Appellants argue that “the Legislature bent several rules” (AOB, p. 3),
but this gravely mischaracterizes the Legislature’s actions. The reality is
10
that the Legislature simply replaced old statutory rules with new statutory
rules governing the election procedures for Proposition 1A on the November
4, 2008, statewide ballot.
C. SECTIONS 3 AND 4 OF ARTICLE II COMMIT THE ELECTION PROCESS TO THE LEGISLATURE AND DO NOT RESTRICT IT FROM DETERMINING HOW TO PLACE LEGISLATIVE MEASURES ON THE BALLOT Appellants suggest that Sections 3 and 4 of Article II somehow
preclude the Legislature from establishing procedures for presenting
measures to the electors. AOB, p. 10. However, by their plain language,
these provisions fully entrust the supervision of elections to the Legislature,
as the Legislature is directed “to provide for … free elections,” Art. II, § 3,
and “prohibit improper practices that affect elections.” Art. II, § 4.
These sections confirm that, under the California Constitution, the
Legislature is entrusted with enacting statutes to govern election
procedures.5 And, as the California Supreme Court stated in describing the
plenary power of the Legislature, “[i]f there is any doubt as to the
Legislature's power to act in any given case, the doubt should be resolved in
favor of the Legislature's action. Such restrictions and limitations [imposed
by the Constitution] are to be construed strictly, and are not to be extended
5 Even as to initiative and referendum measures, the Legislature is constitutionally mandated to “provide the manner in which petitions shall be circulated, presented, and certified, and measures submitted to the electors.” Art. II, § 10, subd. (d).
11
to include matters not covered by the language used."' State Personnel Bd.,
37 Cal.4th at 523 (internal quotation marks and citations omitted).
Appellants cite no relevant authority supporting their position that
Sections 3 and 4 of Article II preclude the Legislature from enacting statutes
specifying ballot language for the measures it submits to the electors.
Indeed, the only reported decision discussing these constitutional provisions
appears to be East Bay Municipal Utility Dist. v. Appellate Dept. of Superior
Court (1979) 23 Cal.3d 839. There, the court rejected a claim that requiring
candidates to pay to have their statement of qualifications printed in the
ballot pamphlet violated the guarantee of “free elections” found in Section 3
of Article II. Id., at 845.6
Furthermore, one of the cases that appellants cite, though not relevant
to Sections 3 and 4 of Article II, recognizes that “legislative bodies retain
considerable discretion in formulating election procedures and devising
regulations for the form and content of ballots.” Gould v. Grubb (1975) 14
Cal.3d 661, 669. The court in Gould declined to mandate any particular
election procedure because “the regulation of electoral matters is largely a
legislative matter, and legislative bodies have broad discretion in
establishing election procedures, subject, of course, to constitutional 6 This decision also refutes appellants’ contention that the guarantee of “free elections” does not signify, among other things, without cost. AOB, p. 11.
12
restraints.” Id., at 676.
In any event, Gould did not address either Section 3 or Section 4 of
Article II. The issue in Gould was a city charter provision that placed
incumbents in the top ballot position, and this provision was held to violate
equal protection as “the city has demonstrated no compelling interest which
necessitates the provision's discriminatory classification scheme.” Gould, 14
Cal.3d at 664. Here, however, no discriminatory classification scheme is at
issue or even alleged.
Neither Section 3 nor Section 4 of Article II includes language
restricting the Legislature’s power to adopt procedures for presenting its
measures to the electors, and no restriction should be inferred. To the
contrary, these constitutional provisions specifically commit to the
Legislature, and its discretionary lawmaking authority, the power to
establish election procedures.
Although neither Section 3 nor Section 4 of Article II has relevance to
this matter, the California Constitution elsewhere does contain provisions
that expressly govern the manner in which general obligation bond measures
in particular are to be submitted to the voters. Cal. Const., Art. XVI, Sec. 1.7
7 Section 1 of Article XVI provides, in pertinent part, that“[f]ull publicity as to matters to be voted upon by the people is afforded by the setting out of the complete text of the proposed laws, together with the arguments for and against
13
The electoral procedures applied in the case of the bond measure in question
here, including those specified by Chapter 267 of the Statutes of 2008, fully
complied with these specific constitutional requirements.
Finally, as explained above, any doubt as to the extent of the
Legislature’s power to enact these election procedures must be resolved in
favor of the Legislature’s action, because “all intendments favor the exercise
of the Legislature’s plenary authority.” White v. Davis (2003) 30 Cal.4th
528, 539. Sections 3 and 4 of Article II do not limit the Legislature’s power
to decide how to place legislative measures before the voters.
D. STATUTORILY SPECIFIED BALLOT LANGUAGE DOES NOT INTERFERE WITH FAIR ELECTIONS
Appellants attempt to argue that the Legislature’s enactment of a
statute specifying ballot language is wholly incompatible with fair elections.
The cases on which appellants rely are simply not on point, as they involve
constitutional issues not remotely at issue here. Further, none of these cases
supports the invalidation of a statute respecting election procedures enacted
by a state legislature.
For example, in Gould, a voting procedure giving advantages to
them, in the ballot pamphlet mailed to each elector preceding the election at which they are submitted, and the only requirement for publication of such law shall be that it be set out at length in ballot pamphlets which the Secretary of State shall cause to be printed.” Art. XVI, § 1.
14
incumbents was found to violate the equal protection guarantee as a
discriminatory classification. Gould, 14 Cal.3d at 669. In Canaan v.
Abdelnour (1985) 40 Cal.3d 703, 724, limitations on write-in votes were
found to unconstitutionally restrict ballot access, in violation of equal
protection. Castro v. State of California (1970) 2 Cal.3d 223, 242, found an
equal protection violation in denying votes to non-English-speaking voters.
Griset v. Fair Political Practices Com. (1994) 8 Cal.4th 851, upheld the
constitutionality of a requirement that persons making mass mailings
identify themselves, rejecting a First Amendment challenge to such
disclosure.
In Fair v. Hernandez (1981) 116 Cal.App.3d 868, the issue was the
proper interpretation of a statute governing write-in ballots, and the court
determined which ballots should be counted to prevent “unfettered variety
[that] would undermine … the integrity of the voting process. Id., at 877.
And, finally, in Greene v. Marin County Flood Control and Water Cons.
Dist. (2009) 171 Cal.App.4th 1478, the court merely reconciled the
requirement that voting be secret (Art. II, § 7), with the requirement that
voters approve new local fees, Art. XIIID, in order to protect the voters’
“right to vote freely with the confidence that their votes will remain secret
…” Greene, 171 Cal.App.4th at 1486.
15
None of these issues exists in this case. Appellants appear to have
pulled random quotations extolling the right to vote from these cases,
without relating them to the context in which the statements appear.
The only arguably relevant case authority presented by appellants
involves Stanson v. Mott (1976) 17 Cal.3d 206, and its progeny, but, even
there, the case law does not support appellants’ claim that it is unlawful for
the Legislature to enact a statute providing the language to be used for the
ballot label and the ballot title and summary. The holding in Stanson applies
where a government agency, without specific statutory authorization, spends
public funds to influence the election process. Here, of course, not only is
there no expenditure of public funds other than that required to conduct the
election, but there is obviously statutory authorization. Indeed, appellants’
precise objection is that Chapter 267 of the Statutes of 2008 specified the
ballot language.
In Stanson, a state official, without statutory authorization, spent
public funds to promote the passage of a bond measure. Stanson, 17 Cal.3d
at 209. The California Supreme Court concluded that “at least in the
absence of clear and explicit legislative authorization, a public agency may
not expend public funds to promote a partisan position in an election
campaign.” Id., at 209-210. The court relied upon language in Mines v. Del
16
Valle (1927) 201 Cal. 273, a case involving public funds spent to promote a
municipal bond measure, again without legislative authority. Mines stated
that the expenditure “cannot be sustained unless the power to do so is given
to said board in clear and unmistakable language.” Id., at 287. The Stanson
court made it clear, however, that public funds could be used to provide the
public with information about measures submitted for public approval.
Stanson, at 221.
Thus, Stanson applies where public funds are being spent without
statutory authorization directly for partisan campaign purposes. That is not
the case here, where the ballot label and ballot title and summary merely
informed the voters of the content of the bond measure, subject to review
and modification by the trial court to ensure that these ballot materials
contained no false or misleading information. There was certainly no
expenditure of public funds urging a “yes” or “no” vote; the Legislature
simply provided truthful and accurate information to the voters, subject to
the same judicial review for false or misleading statements that would have
applied if the Attorney General, instead of the Legislature, had drafted the
language.
The ballot language specified by the Legislature in Chapter 267 of the
Statutes of 2008 is a fair presentation for purposes of educating the voters
17
regarding the effects of the ballot proposition. Unquestionably, the
Legislature favored the passage of the bond measure, as it was adopted, as
constitutionally required, by a two-thirds vote of each house, and it was also
approved by the Governor.8 However, the information provided to the
voters pursuant to Chapter 267 of the Statutes of 2008, as subjected to prior
judicial review, was neither false nor misleading, and enabled the voters to
make their own decision about the legislative proposal and whether or not to
support the bond measure. And, although appellants object to this measure,
the voters agreed with the Legislature and the Governor as to the need to
issue bonds to finance a high-speed train system.
E. BOND MEASURES SUBMITTED BY THE LEGISLATURE TO THE ELECTORS ARE NOT SUBJECT TO THE PROVISIONS GOVERNING INITIATIVES AND REFERENDA In most cases, legislation passed by the Legislature becomes effective
without voter approval. See Art. IV, §§ 8, 10, and 12. However, the
Constitution does require general obligation bond measures and a few other
categories of legislative acts to be presented to the electors.9 Initiative and
8 The legislative history of Chapter 267 of the Statutes of 2008 may be found at http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_3001-3050/ab_3034_bill_20080826_history.html. 9 In addition to bond measures (Art. XVI, § 2, subd. (a)), legislative proposals to amend or revise the California Constitution or to call a constitutional convention must also be submitted to the electors. Art. XVIII, §§ 1 and 2. Legislative
18
referendum measures, on the other hand, must always be adopted by the
electors to become effective. Art. II, §§ 10-12.
The California Constitution plainly differentiates between initiative
and referendum measures proposed by petitions and those measures enacted
by the Legislature that must be submitted to the electors, as it imposes
requirements on the process for voter approval of initiatives and referendum
measures that are not imposed on measures the Legislature must submit to
the electors. In particular, the California Constitution mandates the Attorney
General to prepare titles and summaries for initiative and referendum
petitions before these are circulated for signatures. Art. II, § 10, subd. (d).
There is no equivalent constitutional provision directing the Attorney
General to prepare titles and summaries for legislative measures to be
submitted to the electors. The California Constitution also establishes the
timing for initiative and referendum measures to be presented to the electors.
Art. II, § 8, subd. (c), and § 9, subd. (c). Again, there is no corresponding
constitutional provision for when legislative measures are to be submitted to
the voters.
Furthermore, even as to initiative and referendum measures, the
California Constitution does not mandate that the same titles and summaries proposals to amend or repeal an initiative statute must also be submitted to the electors, unless the initiative provides otherwise. Art. II, § 10, subd. (a).
19
that the Attorney General prepared prior to circulation of initiative and
referendum petitions appear in ballot materials. The requirement for the
Attorney General to prepare ballot labels and summaries for initiative and
referendum measures is purely statutory. Elec. Code §§ 9004, 13281.
Indeed, the Legislature is specifically mandated by the Constitution to
establish procedures by which initiative and referendum measures are
presented to the electors. Art. II, § 10, subd. (e).
So, although the California Constitution does establish the
requirement that titles and summaries for initiative and referendum petitions
are to be prepared by the Attorney General before these are circulated for
signatures, and establishes the timing for initiative and referendum measures
to be presented to the electors, it does not specify what is to be included in
ballot pamphlets even as to initiative and referendum measures and it says
nothing as to the procedures for seeking voter approval of legislative
measures.
Although there are no constitutional provisions regarding legislative
measures to be submitted to the electors, appellants argue that the
procedures applicable to initiative and referendum measures must also apply
to bond measures. AOB, pp. 5-7. As they note, the Legislature has enacted
statutes establishing procedures generally applicable to legislative measures
20
to be submitted to the electors, and these statutes sometimes track the
constitutional provisions for initiative and referendum measures. Compare,
for example, Art. II, § 8, subd. (c), with Elec. Code § 9040. But the
procedures for submitting legislative measures to the electors are purely
statutory, and thus may be changed by statute, as happened in Chapter 267
of the Statutes of 2008.
In addition, the Constitution specifically charges the Legislature with
the authority to provide for free elections and prohibit improper election
practices. Art II, §§ 3 and 4. With minor exceptions not relevant here, the
process for submitting legislative measures to the electors is purely statutory,
and not mandated by the Constitution.10 Because the California Legislature
has all legislative power not limited by the California Constitution, and the
Constitution is silent as to the process for obtaining voter approval of
legislative measures, the Legislature’s constitutional authority to enact
statutes governing the procedures for submitting a general obligation bond
measure to the electors must be respected.
10 A few constitutional restrictions do exist. For example, legislative measures proposed to the electors may not name any individual to hold office or any private corporation to perform any functions. Art. II, § 12. Legislative measures proposed to the electors may not include or exclude political subdivisions of the state based on the votes in that subdivision or specify that provisions become law based upon a specified percentage of votes. Art. IV, § 8.5. These provisions are all irrelevant to this case.
21
F. THE CONSTITUTION DOES NOT REQUIRE THAT ONLY THE ATTORNEY GENERAL DRAFT BALLOT LANGUAGE
Appellants assert that the electors need to have reliable information,
and then, without any supporting authority, leap to the conclusion that only
the Attorney General, who provides this information for initiatives and
referenda is qualified to provide this information for legislative measures.
AOB, pp. 5-6. They describe the Attorney General as “unbiased” and
“presumed to not take sides,” AOB, p. 6, relying on City of Sacramento v.
State of California (1984) 156 Cal.App.3d 182, and Songstad v. Superior
Court (2001) 93 Cal.App.4th 1202. Appellants cite no authority, and there
is none, for the proposition that the California Constitution assigns to the
Attorney General the authority to prepare the ballot label, or ballot title and
summary, for a bond measure the Legislature places on the ballot, to the
exclusion of the Legislature’s authority to specify the contents of those
documents by statute. Furthermore, neither of the cases cited by appellants
is on point.
City of Sacramento concerned a published opinion issued by the
Attorney General. City of Sacramento, 156 Cal.App.3d at 192. The
Attorney General is authorized by Government Code § 12519 to issue
opinions, and these opinions are “quasi-judicial.” People v. Shearer (1866)
30 Cal. 645, 653. Therefore, opinions issued by the Attorney General are
22
necessarily subject to an impartiality standard, as is the judiciary. Fletcher
v. Comm. on Judicial Performance (1998) 19 Cal.4th 865, 910.
Songstad did not even concern the Attorney General. Rather, it dealt
with a county-wide initiative measure, and the statutory requirement in
Government Code § 9105, subd. (a), that the county counsel prepare a ballot
title before circulation of the measure, with the title being “a true and
impartial statement of the purpose of the proposed measure” and that this
title “neither be an argument, nor be likely to create prejudice, for or against
the proposed measure.” Songstad, 93 Cal.App.4th at 1205. The actual
holding in Songstad was that an opponent of a measure had no right
equivalent to that of a measure’s proponent to file a pre-circulation challenge
to the county counsel language. Id., at 1211. Even so, if a proponent did
challenge the county counsel’s language, the judicial standard of review is
clear and convincing evidence that the language is false or misleading. Elec.
Code § 9106.
Other cases appellants cite to support their unfounded assertion that
the Attorney General, but not the Legislature, should be presumed to be
unbiased as a matter of law appear to confuse the impartial analysis prepared
for each state measure by the Legislative Analyst with the ballot label and
ballot title and summary prepared by either the Attorney General or, as in
23
this case, the Legislature. Under Elections Code § 9087 and Government
Code § 88003, the Legislative Analyst is to “prepare an impartial analysis of
the measure ….” As those sections provide:
The analysis shall be written in clear and concise terms, so as to be easily understood by the average voter, and shall avoid the use of technical terms wherever possible. The analysis may contain background information, including the effect of the measure on existing law and the effect of enacted legislation which will become effective if the measure is adopted, and shall generally set forth in an impartial manner the information the average voter needs to adequately understand the measure. Elections Code § 9087 and Government Code § 88003 were not
affected by Chapter 267 of the Statutes of 2008, and the Legislative
Analyst’s analysis was included in the ballot material for the high-
speed train system bond measure, (LRJN 32-33), along with an
overview of California’s bond debt. LRJN 36-37. Appellants did not
challenge this impartial analysis as false or misleading or name the
Legislative Analyst in their petition. CT 1-9.
Similarly, Elections Code § 9160, formerly § 3781, and Elections
Code § 9280, formerly § 5011, require county counsels and city attorneys to
prepare impartial analyses of county and city measures, respectively. Some
of the cases cited by appellant refer to these requirements for impartial
analyses. In Hull v. Rossi (1993) 13 Cal.App.4th 1763, 1768, the court
discussed “[t]he public's right to an accurate impartial analysis under
24
Elections Code section 3781, subdivision (b) ….” See also Songstad, 93
Cal.App.4th at 1205. Another case concerns local ballot arguments. See
Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578, 585. Another
concerns an initiative petition that itself included false and misleading
statements intended to mislead voters. San Francisco Forty-Niners v.
Nishioka (1999) 75 Cal.App.4th 637, 646-647. And, perhaps most
peculiarly, appellants cite a case addressing filing fees for candidates. In
Knoll v. Davidson (1974) 12 Cal.3d 335, 352, the court noted that “it seems
likely that candidates who have their statements of qualifications included in
the voter's pamphlet have a clear advantage over candidates who do not.”
The court declined, however to invalidate the fee, as payment was not, in
fact, a prerequisite for including a candidate’s statement of qualifications.
Ibid.
These cases simply do not support the contention that the Attorney
General, who is a state officer elected on a partisan basis, has the exclusive
constitutional authority to prepare each ballot label or ballot title and
summary. Nor do these cases otherwise address the constitutional validity
of the Legislature’s enactment of a statute specifying the language for a
ballot label and ballot title and summary. AOB, p 7. Moreover, as this
Court has recognized, the fact that the drafter of ballot language supports or
25
opposes the underlying measure does not mean that the language is therefore
biased. For example, when the Attorney General supports an initiative, this
does not mean that the ballot language drafted by the Attorney General is
entitled to any less deference on judicial review. As this Court explained in
Lungren v. Superior Court (1996) 48 Cal.App.4th 435, 440 n.1, “[a]s an
elected state constitutional officer, the Attorney General is not only entitled
to an opinion on matters of public importance, he is entitled to state that
opinion publicly. It is immaterial whether the Attorney General supports or
opposes Proposition 209.”
As an additional example of the Attorney General not being an
uninterested party in this respect, it may be noted that although the Attorney
General, in his official capacity, drafted the ballot label and ballot title and
summary for Proposition 8, an initiative measure submitted to the voters at
the November 4, 2008, statewide election, he also, again in his official
capacity, opposed the constitutionality of that initiative. See Strauss v.
Horton (2009) 46 Cal.4th 364.
In Lungren, opponents of Proposition 209, an initiative that the
Attorney General supported and that was to appear on the ballot for the
November 1966 statewide general election, challenged the Attorney
General’s failure to include ballot language indicating the measure would
26
prohibit affirmative action. This Court rejected the notion that the Attorney
General’s language should be entitled to less deference because he supported
the measure, and applied the “false or misleading” test set out in Elections
Code Section 9092 and Government Code Section 88006. Lungren, 48
Cal.App.4th at 439.
As explained above, the Legislature may exercise its constitutional
authority to legislate in any manner not “expressly or by necessary
implication” denied to it by the Constitution; any doubt in this respect is to
be resolved in favor of the Legislature’s authority, and any constitutional
provision that may limit that authority is to be strictly construed and “not to
be extended to include matters not covered by the language used.” People v.
Gordon (1944) 62 Cal.App.2d. 268, 271. See also People v. Hayne (1890)
83 Cal. 111, 115; People v. 8,000 Punchboard Card Devices (1983) 142
Cal.App.3d 618, 620. Further, the Constitution expressly assigns to the
Legislature both the authority and responsibility to “provide for … free
elections” and to “provide the manner in which … [initiative] measures [are]
submitted to the electors.” Art. II, §§ 3 and 10, subd. (e). Conversely,
Appellants have failed to identify any provision of the Constitution that
either assigns to the Attorney General the exclusive authority to prepare a
ballot label, or a ballot title and summary, for a general obligation bond
27
measure to be submitted to the electorate, or that denies to the Legislature
the authority to enact a statute setting forth the language for those ballot
materials.
III
THE RIGHT TO JUDICIAL REVIEW GUARANTEES THAT THE LEGISLATURE DOES NOT MISUSE ITS POWER
TO DRAFT ELECTIONS MATERIALS A. JUDICIAL REVIEW ENSURES THAT BALLOT LANGUAGE
SPECIFIED BY STATUTE IS NOT FALSE OR MISLEADING
Although appellants claim that Chapter 267 of the Statutes of 2008
interferes with the right to a fair election (AOB, pp. 10-15), appellants have
failed to show either that this measure resulted in any unfairness, or that the
abstract possibility of concerns regarding fairness of the ballot language in
Chapter 267 constitutionally bars the Legislature from enacting such a
statute.
The Legislature is clearly a proponent as to any legislative measure
that the California Constitution mandates must be submitted to the voters, as
it causes the measure to be placed on the ballot. Nevertheless, the California
Constitution does not restrict the Legislature in enacting procedures
governing these measures. Moreover, the fact that the Legislature has an
opinion as to the measure is of no legal consequence. “[T]he mere
circumstance that a public entity may be understood to have an opinion or
28
position regarding the merits of a ballot measure is not improper.” Vargas v.
City of Salinas (2009) 46 Cal.4th 1, 36.
Under California law, the contents of a ballot label and a ballot title
and summary, whether prepared by the Attorney General or, as here,
specified by statute, are governed by Elections Code Section 9092 and
Government Code Section 88006, which provide for judicial review of those
materials and authorize the courts to amend or delete any contents shown to
be false or misleading. So, as to any possible claim that the statutory
language specified for the ballot label or the ballot title and summary is false
or misleading, the remedy is judicial review of the language under the “false
or misleading” governing standard for judicial review set forth in Elections
Code Section 9092 and Government Code Section 88006.
It is important to recognize that even though the Legislature
superseded certain statutory procedures in Chapter 267 of the Statutes of
2008, it did not alter the requirement that the ballot language set forth in that
statute be subject to judicial review under the “false or misleading” standard,
and it did not challenge the authority of the trial court to apply that standard
to the language in that chapter. To the contrary, the Legislature specifically
provided in Chapter 267 of the Statutes of 2008 that any voter could petition
for a writ of mandate to seek judicial review of the ballot language. § 11 (i).
29
Appellants took advantage of this opportunity, and challenged the
language in Chapter 267 of the Statutes of 2008, arguing that two sentences
in this language were false or misleading. CT 6-9. In defending this
language in the trial court, the Legislature never contended that the statutory
language was not subject to judicial review; it merely argued that the
language was not false or misleading. CT 197-202.
The trial court, in fact, agreed with appellants in one respect and
ordered a modification to the ballot language, although it rejected appellants’
challenge of other language. CT 219, 221-222. The Legislature has not
sought review of this order or disputed the authority of the trial court to issue
a writ of mandate upon a finding of clear and convincing proof that the
language was false or misleading.11
The authority of the courts to apply the “false or misleading” standard
to ensure the integrity of ballot materials has served the people of California
well, and applies equally whether the ballot label and ballot title and
summary are drafted by the Attorney General or, as here, specified by
statute. Appellants have failed to show that Chapter 267 of the Statutes of
11 The Legislature does, however, object to appellants’ belated challenge on appeal as to language not challenged in their petition. Their petition challenged only two sentences in the ballot language. Compare AOB, p. 7-8, with CT 6-8, and RT 12:14-16. They have waived any right to object to any ballot language not challenged in their petition.
30
2008 represents a change to this long-standing system of judicial review or,
more, importantly, that the Legislature is somehow barred by the California
Constitution from enacting this statute.
B. THE LEGISLATURE MAY NOT UNILATERALLY REPEAL THE AVAILABILITY OF JUDICIAL REVIEW Not only has the Legislature not sought to derogate the authority of
the courts to review ballot materials for false or misleading language, it is
constitutionally precluded from doing so unilaterally. Government Code
Section 88006, containing that standard, was enacted by initiative measure,
as part of Proposition 9, the Political Reform Act of 1974 (PRA), approved
by the voters at the June 4, 1974, statewide primary election. The
Legislature may amend the PRA only to further its purposes, and then only
by specified procedures. Art. II, Sec. 10, subd. (c); Gov’t Code § 81012.
While appellants have not raised this contention, the Legislature
submits to the Court that the enactment of statutes such as Chapter 267 of
the Statutes of 2008 neither amends nor violates the PRA. Nothing in the
PRA prevents the Legislature from specifying, by statute, who is to draft the
ballot label and ballot title and summary that appear in the ballot pamphlet.
In this regard, the Legislature calls to the Court’s attention a decision
it reached nearly 20 years ago concerning a question as to whether a
subsequent law would “amend” an initiative statute, in this case the PRA. In
31
Huening v. Eu (1991) 231 Cal.App.3d 766, this Court invalidated former
Elections Code Section 3564.1, which provided that “[a] ballot argument or
a rebuttal argument which includes in its text the name or title of a person,
other than the author of the argument, who is represented as being for or
against a measure, shall not be accepted unless the argument is accompanied
by a signed consent of that person,” as an attempt to amend the PRA without
following the requirements set forth in Government Code Section 81012 for
amending the PRA. Huening, 231 Cal.App.3d at 779. In reaching this
conclusion, the Court stated that “Chapter 8 of the Political Reform Act
(Gov. Code, § 88000 et seq.) governs the content of a ballot pamphlet.” Id.,
at 777.
The case arose when opponents of a measure submitted a rebuttal
argument that included the name of a company without first obtaining the
consent of that company. The measure’s proponents filed an action to have
this language removed; they were successful at the trial court level, and the
challenged language was removed from the ballot pamphlet. The opponents
appealed, arguing that the statute violated the First Amendment of the
federal constitution and that it amended the PRA without complying with its
requirements for amendment. Huening, 231 Cal.App.3d at 769-770.
Two of the Justices concluded that this section did amend the PRA,
32
stating further that their “conclusion section 3564.1 is an amendment to the
Political Reform Act whose enactment was not in compliance with the
provisions of that act renders it unnecessary to consider opponents' other
contentions.” Huening, 231 Cal.App.3d at 770.12 The third Justice would
have invalidated the statute under the First Amendment and not found it to
amend or violate the PRA. Id., at 780-782 (Raye, J., concurring and
dissenting).
The Legislature raises this issue because Government Code Section
88002, subdivision (a)(2), in enumerating the components that the ballot
pamphlet is to include, contains a reference to “[t]he official summary
prepared by the Attorney General.” If this reference is construed as a
mandate in the PRA that only the Attorney General may prepare the ballot
summary, then Chapter 267 of the Statutes of 2008, and any other statute
that instead gives this responsibility to anyone other than the Attorney
General, amends the PRA, and must follow the requirements for amending
the PRA to be valid. Under the Constitution, the Legislature may amend
initiative statutes only “by another statute that become effective only when
approved by the electors unless the initiative statute permits amendment or
12 The position advanced by the Attorney General in that case was that “the Political Reform Act does not regulate the content of ballot arguments and Government Code section 81012 was never intended to apply so broadly.” Id., at 772.
33
repeal without their approval.” Art. II, § 10, subd. (c). The PRA provides
that the Legislature may amend the PRA, but only to further its purposes and
then only pursuant to specified procedures. Gov’t Code § 81012, subd. (a).
A determination of whether or not a law constitutes an amendment of
an initiative statute requires, initially, an assessment of the scope and effect
of the initiative statute. In recent years, the California Supreme Court and
the appellate courts of this state, including this Court, have uniformly based
that assessment of scope and effect upon the intent of the electorate in
approving the initiative.
Applying the same principles that govern construction of a statute
(Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900), courts have ruled,
in this respect, that the primary objective is to determine and give effect to
the underlying intent of the voters in approving the initiative. People v.
Briceno (2004) 34 Cal.4th 451, 459. It is also well established that a court
may not interpret an initiative measure “... in a way that the electorate did
not contemplate…” Hodges v. Superior Court (1999) 21 Cal.4th 109, 114.
In the interpretation of an initiative measure, “… the voters should get what
they enacted, not more and not less. ” Ibid. Also, the voters’ intent in
approving an initiative measure is determined in the context of the measure
34
in its entirety and the statutory framework in which it appears. Briceno, 34
Cal. 4th at 459.
For example, in People v. Cooper (2002) 27 Cal.4th 38, 44, the
California Supreme Court upheld a sentence based on a statute that limited
presentence conduct credits, even though the statute was enacted after the
passage of an initiative referred to as the Briggs Initiative, which increased
the sentences for murder. The Court agreed that the statute was not an
invalid amendment of the initiative, reasoning that the statute did not
“circumvent the intent of the electorate in adopting the Briggs Initiative.”
Id., at 48. Ibid. The Court did so even though the Briggs Initiative, unlike
the PRA, did not authorize the Legislature to amend its provisions.
As the Court explained, “because [the initiative statute] does not
specifically authorize or prohibit presentence conduct credits,” the award
and limitation of those credits was not an invalid amendment of the initiative
statute. Id., at 47 (italics in original). Furthermore, allowing presentence
conduct credits did “not appear to contravene the electorate’s intent.” Id., at
47, fn. 6.
This Court itself followed analogous reasoning in Knight v. Superior
Court (2005) 128 Cal.App.4th 14, where it rejected a claim that Family
Code Section 297.5, recognizing and granting rights to domestic
35
partnerships, was void as an amendment to Proposition 22, the defense of
marriage initiative, finding that the statute “does not add to, or take away
from, Proposition 22.” Knight, 128 Cal.App.4th at 25. Proposition 22,
unlike the PRA, permitted amendment only by the electors, but this Court
rejected the claim that Section 297.5 was an invalid amendment, finding that
Proposition 22 was “intended only to limit the status of marriage to
heterosexual couples and to prevent the recognition in California of
homosexual marriages … of other jurisdictions” and that it expressed no “…
intent to repeal … existing domestic partners laws or to limit the
Legislature’s authority to enact other legislation regulating such unions.” Id.,
at 18. This determination of whether a subsequent law amended Proposition
22, an initiative statute, was thus based not on whether there existed any
overlap between the subjects addressed by the initiative statute and the
subsequent law, but on whether the initiative statute expressed an intent to
govern the particular matter that the subsequent law sought to affect.
This Court applied similar reasoning in Calif. Teachers Assn. v. Hayes
(1992) 5 Cal.App.4th 1513, when it harmonized Proposition 98 with the
Legislature’s existing constitutional powers, and refused to invalidate a
statute that was alleged to violate Proposition 98. At issue in that case was a
statute enacted subsequent to the adoption of Proposition 98 that included
36
funding for child care services within the funding guarantees of Proposition
98. Id., at 1529. Proposition 98, like the PRA, provides that the Legislature
may amend it only to further its purposes. Id., at 1529-1530, 1543. In
rejecting plaintiffs’ claim, this Court explained that “nothing in Proposition
98 or any other provision of law either expressly or implicitly restricted the
Legislature from including [the California Department of Education's] direct
provision of child development services through contracts with private
agencies within that guarantee.” Id., at 1531.
The Court explained that it was “not here concerned with the
advisability or wisdom of the Legislature's decision. Under our form of
government, policymaking authority is vested in the Legislature and neither
arguments as to the wisdom of an enactment nor questions as to the
motivation of the Legislature can serve to invalidate particular legislation.”
Calif. Teachers Assn., 5 Cal.App.4th at 1529 (footnote omitted).
The Court further relied on the fact that the Legislature is
constitutionally mandated to provide free public education under Section 5
of Article IX. Calif. Teachers Assn., 5 Cal.App.4th at 1522. “The
Legislature's power over the public school system has been variously
described as exclusive, plenary, absolute, entire, and comprehensive, subject
only to constitutional constraints.” Id., at 1524.
37
Of course, the same is true of the Legislature’s power to provide for
elections. Art. II, § 3; Art. IV, Sec. 1.
And, the Court relied on the fundamental principle discussed above
that the Legislature has and may exercise any and all legislative powers not
expressly or by necessary implication denied it by the Constitution, and that
any doubts as to the Legislature’s power to act in a particular case are to be
resolved in favor of the Legislature’s authority. Calif. Teachers Assn., 5
Cal.App.4th at 1532. As the Court concluded:
The measure does not expressly restrict the Legislature's plenary authority nor does it grant to school districts exclusive control over education funds. Had such a result been intended there are any number of linguistic formulations which could have so specified with adequate clarity. As a court, we cannot impose limitations or restrictions upon the Legislature's prerogatives in the absence of language reasonably calculated to require such a result when subjected to strict construction.
Id., at 1534.
Under this recent reasoning by this Court and the California Supreme
Court, the issue is not simply whether a subsequent law addresses a subject
that is also touched upon by an initiative statute, but whether that subsequent
law substantively modifies any matter over which, pursuant to their approval
of the initiative statute, the voters intended to exercise control. In making
this determination, the courts have been guided by the principle that the
Legislature retains all authority not expressly restricted, and any doubts as to
38
the Legislature’s authority to act must be resolved in favor of its actions.
Consequently, in order to assess the scope and effect of the PRA in
this respect, this Court must initially determine what intent of the electorate
should be inferred from the existence of the reference in Government Code
Section 88002, subdivision (a)(ii), to the “official summary prepared by the
Attorney General.”
Government Code Section 88002, as added by the PRA, states, in
pertinent part, as follows:
88002. The ballot pamphlet shall contain as to each state measure to be voted upon, the following in the order set forth in this section:
(a) Upon the top portion of the first page and not exceeding one-third of the page shall appear:
(i) The identification of the measure by number and title. (ii) The official summary prepared by the Attorney General. (iii) The total number of votes cast for and against the measure in
both the State Senate and Assembly if the measure was passed by the Legislature.
Government Code Section 88002 is one of several related sections
added by the PRA that address the ballot pamphlet in a relatively narrow
way. The PRA specifies that the pamphlet must include the text of the
proposed measure as well as the provisions to be repealed or revised, and the
arguments for and against each measure (Gov’t Code § 88001), it establishes
the order in which material is to appear, including where on each page
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certain contents were to be located (Gov’t Code § 88002), and it sets forth
the printing specifications for the pamphlet (Gov’t Code § 88005).
It is clear from this context that the purpose of Section 88002 is
merely to identify the related materials for each state measure that are to be
placed in the ballot pamphlet and to provide direction for their placement
within the ballot pamphlet.
Given this purpose of Government Code Section 88002, it follows
that the provision of that section that refers to the “official summary
prepared by the Attorney General” was intended merely to identify the
document as an element of the ballot pamphlet, describing that document by
reference to the then-existing statutory scheme. The Attorney General was,
at the time the PRA was adopted, the official statutorily assigned the duty of
preparing the summary. See former Elec. Code §§ 3530 and 3531; Ch. 23,
Stats. 1961. The ballot summary was therefore described in the PRA with
reference to the statute in effect at that time, and the reference to the
Attorney General in this context was merely descriptive and explanatory.
Nothing in the PRA supports the inference that this wording instead was
meant to convey to the voters the separate purpose of requiring that only the
Attorney General could lawfully exercise this function.
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To the contrary, when the PRA intends to mandate a particular official
or office to carry out a specific duty, it expressly so states. For example, in
Government Code Section 88003, the Legislative Analyst is directed to
prepare an impartial analysis of each measure. And, in Government Code
Section 88005.5, the Legislative Counsel is directed to prepare and
proofread the texts of all measures. However, there is no similar provision in
the PRA directing the Attorney General to prepare the ballot summary.
There is also no specification as to who is to prepare the ballot title, as the
PRA merely directs that the ballot pamphlet include the title of each
measure. Gov’t Code § 88002, subd. (a)(1).13
The PRA’s concern with the statewide ballot pamphlet is with
promoting full disclosure to voters and making the ballot pamphlet “a useful
document so that voters will not be entirely dependent on paid advertising
for information regarding state measures.” Gov’t Code § 81002, subd. (d).
Among the findings and declarations supporting the PRA was the fact that,
at that time, “the ballot pamphlet mailed to the voters by the state is difficult
to read and almost impossible for a layman to understand.” Gov’t Code
§ 81001, subd. (g). And, as discussed above, the PRA guarantees judicial
13 The ballot label is not even mentioned in the PRA; only Elections Code Section 13281 provides for the Attorney General to draft the ballot label.
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review to ensure that the information in the ballot pamphlet is not false or
misleading. Gov’t Code § 88006.
But, it strains credulity to conclude that the language in Government
Code Section 88002, in setting forth the contents of the ballot pamphlet and
directing their specific placement within the ballot pamphlet, thereby
conveyed to the voters the separate purpose of governing the manner in
which those contents are to be prepared. As characterized by this Court in
Huening, “Government Code sections 88002 and 88004 set forth the order
of information to be included in the pamphlet.” Huening, 231 Cal.App.3d at
777. Similarly, the concurrence in Huening recognized that, “[w]hile the
Political Reform Act added provisions to the Government Code relating to
the statewide ballot pamphlet, the provisions could fairly be characterized as
innocuous.” Id., at 780 (Raye, J., concurring).
The PRA plainly did not convey to the voters the intent to otherwise
freeze the contents of the ballot pamphlet or, except as expressly provided
by the PRA as to the Legislative Analyst and the Legislative Counsel, to
govern the manner in which those contents are to be prepared. To the
contrary, it provides that “the Legislature may without restriction amend this
chapter to add to the ballot pamphlet … any other information.” Gov’t Code
§ 88007. And, the constitutional authority of the Legislature to “provide the
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manner in which … measures [are] submitted to the electors,” found in
Section 10, subdivision (e) of Article II, is not affected. While this specific
constitutional authorization refers to initiative and referendum measures, the
Legislature is also generally charged, as previously explained, with the duty
to “provide … free elections” Art. II, § 3. Both of these constitutional
mandates would, sub silencio, be subjected to unintended restriction if the
PRA were interpreted to remove from the Legislature the power to
determine election procedures that are unrelated to the purposes of the PRA.
In addition, if the PRA were construed to govern not only the content
of the ballot pamphlet, but, also, who must draft each part of the pamphlet,
this would create additional unintended mischief. Under existing law,
Elections Code Section 9003 provides:
In the event that the Attorney General is a proponent of a proposed measure, the title and summary of the chief purpose and points of the proposed measure, including an estimate or opinion on the financial impact of the measure, shall be prepared by the Legislative Counsel, and the other duties of the Attorney General specified in this chapter with respect to the title and summary and an estimate of the financial effect of the measure shall be performed by the Legislative Counsel.
This provision, enacted in 1991 as former Elections Code Section 3502.05,
Chapter 1042 of the Statutes of 1991, and amended by Chapter 920 of the
Statutes of 1994, is not included in the PRA and was not enacted pursuant to
Government Code Section 81012, subd. (a). It would likely be invalid if the
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PRA were deemed to control both the content of the ballot pamphlet and the
authorship of that content.
The purpose of Government Code Section 88002 in referencing the
summary prepared by the Attorney General was simply to identify that
document in the context of existing law, in accordance with the objective of
that section to direct, as to each state ballot measure, what information is to
be placed in the ballot pamphlet and where in the pamphlet it is to be placed.
As distinguished from the nearby provisions of the PRA that expressly
assign responsibilities to the Legislative Analyst and the Legislative Counsel
with regard to preparing information for the ballot pamphlet (Gov’t Code §§
88003, 88005.5), nothing in the wording or context of Government Code
Section 88002 communicated to the voters the purpose of directing the
Attorney General in the performance of similar responsibilities.
Finally, “[i]f there is any doubt as to the Legislature's power to act in
any given case, the doubt should be resolved in favor of the Legislature's
action. Such restrictions and limitations [imposed by the Constitution] are to
be construed strictly, and are not to be extended to include matters not
covered by the language used." Methodist Hosp. v. Saylor (1971) 5 Cal.3d
685, 691, quoting Collins v. Riley (1944) 24 Cal.2d 912, 916; see also
Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180.
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Applying here the principles in the case law discussed above, the
voters’ intent with regard to Government Code Section 88002, and thus the
scope and effect of the PRA in this respect, cannot fairly be said to include
the issue of authorship of the ballot title or summary. It necessarily follows
from that result that the provisions of Chapter 267 of the Statutes of 2008
specifying the contents of the ballot label and ballot title and summary do
not amend the PRA.14
IV
THE LEGISLATURE’S PRACTICE OF DRAFTING BALLOT LANGUAGE IS NOT EXTRAORDINARY
Appellants’ claim that this decision by the Legislature to amend the
effect of existing statutes, and establish new procedures for submitting this
measure to the voters, is “unprecedented” (AOB, p. 2) is equally
unwarranted, as this is a practice the Legislature has employed and continues
to employ in appropriate cases.
For example, in Chapter 7 of the Statutes of 2009 of the 2009-10
Third Extraordinary Session, the Legislature placed six measures before the
electors at the May 19, 2009, statewide special election, and one measure at
14 By contrast, as noted above, a statute that sought to supersede the authority granted by Government Code Section 88006 to the courts to determine whether particular ballot pamphlet text is false or misleading would substantively modify a matter within the intended scope and effect of the PRA, and thus constitute an amendment to that act.
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the June 8, 2010, statewide primary election.15 For each of these measures,
the Legislature provided that, notwithstanding existing law, the ballot labels
and ballot titles and summary would be as stated in the bill. See Sections 2
through 9 of Chapter 7 of the Statutes of 2009 of the 2009-10 Third
Extraordinary Session, LRJN 2-10. Any concern that the Legislature’s
specification of ballot language would unduly influence the electorate or
somehow lead to unfair elections is dispelled by the fact that the electors in
fact rejected five of the six measures on the May 19 ballot.16
The decision to amend, by statute, existing provisions of law and
enact procedures specifically governing the submission of the ballot measure
contained in Chapter 267 of the Statutes of 2008, including specifying
language for the ballot label and the ballot title and summary, is thus not
without precedent, and appellants have failed to meet their burden of
showing this practice to be an invalid exercise of the Legislature’s
constitutional authority.
15 Judicial notice of this bill is separately requested and is appropriate. Evid. Code §§ 451 (a) and 459 (a). 16 See http://vote.sos.ca.gov/returns/props/map1A.htm; http://vote.sos.ca.gov/returns/props/map1B.htm; http://vote.sos.ca.gov/returns/props/map1C.htm; http://vote.sos.ca.gov/returns/props/map1D.htm; http://vote.sos.ca.gov/returns/props/map1E.htm; and http://vote.sos.ca.gov/returns/props/map1F.htm.
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V
NOTHING WARRANTS HEIGHTENED SCRUTINY OF CHAPTER 267 OF THE STATUTES OF 2008
Finally, appellants suggest that if the Legislature is permitted to enact
a statute specifying a ballot label, or ballot title and summary, for a
legislative measure, heightened scrutiny must apply. They rely on outdated
and irrelevant case law concerning the time period when initiative
proponents drafted their own short title before a measure was circulated for
signature.
In Boyd v. Jordan (1934) 1 Cal.2d 468, 472, for example, the Court
invalidated a proponent’s title for a measure to raise taxes where the title
made no mention of the tax, saying:
The petition before us asks that an amendment to the Constitution be submitted to the people, which amendment has for its sole purpose the raising of revenue for the support of the state government. The short title used in this petition makes no reference to a tax or to the fact that the proposed amendment is a revenue measure. We think it is clear that the short title neither shows the nature of the petition, nor does it show the subject to which it relates. There is nothing in this short title which informed the elector who was asked to sign it that the proposed measure provided for the levy of any tax whatever.
Boyd made no mention of “heightened scrutiny.” To the contrary, the Court
stated that the title “does not, in our opinion, amount to even a substantial
compliance with the requirements of section 1197b of the Political Code.”
Id., at 474-475.
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Clark v. Jordan (1936) 7 Cal.2d 248, similarly concerned an initiative
title found to be invalid under former Political Code Section 1197b. As the
Court explained, “[t]he ‘short title’ … totally fails, directly or indirectly,
expressly or impliedly, to indicate that the proposal is intended to work this
major and natural change in the existing method of taxation -- in fact the title
fails to disclose that any new taxes of any kind are to be imposed.” Id., at
251. Thus, the title was held to be “definitely misleading.” Id., at 252.
Again, there was no mention of heightened scrutiny, just that the statute
should be enforced. Ibid.
Gould did speak of a “standard of ‘close scrutiny,’” but, as explained
above, this was in the context of reviewing an equal protection challenge to
an election procedure involving a discriminatory classification. The law at
issue in Gould clearly created two unequal classes of candidates –
incumbents and all others. The case came to the Court only after the
plaintiffs had made an evidentiary showing that the procedure produced a
substantial advantage for the favored candidate. Gould, 14 Cal.3d at 665. It
was in this context, where a challenger had demonstrated that the procedure
clearly favored one set of candidates over another, that the Court called for
“close scrutiny.” Appellants have neither raised nor demonstrated any such
equal protection concerns as to Chapter 267 of the Statutes of 2008, and
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have proffered no basis in law to support their contention that heightened
scrutiny should be applied.
CONCLUSION
Because the California Legislature has all legislative power not
restricted by the California Constitution, and because the Constitution does
not specify who is to prepare ballot labels or ballot titles and summaries for
measures the Legislature submits to the voters, the Legislature acted within
its authority in placing within Chapter 267 of the Statutes of 2008 the
specific language to be included in the ballot label and ballot title and
summary. The Legislature acted within its constitutional authority when, by
two-thirds vote of each house, and joined by the Governor, it caused this
measure to be placed on the ballot, and appellants have made no showing of
the constitutional basis requisite to support its contention that the Legislature
cannot specify ballot language by statute. And, finally, the recognition,
pursuant to well-established judicial precedent, that the California
Constitution imposes no prohibition upon the enactment of Chapter 267 of
the Statutes of 2008 cannot be said to adversely affect the fairness of the
election process, which continues to be protected by the availability of
judicial review for false or misleading statements.
The court below correctly concluded that appellants’ petition should
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be denied insofar as it challenged this legislative decision, and this appeal
should be dismissed as moot. Alternatively, the judgment should be
affirmed.
Date: July 6,2009 Respectfully submitted, Diane F. Boyer-Vine Legislative Counsel By: Marian M. Johnston Deputy Legislative Counsel Attorneys for Real Party in Interest/ Respondent Legislature of California
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WORD COUNT CERTIFICATION
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attached brief, including footnotes, as measured by the word count of the
computer used to produce this brief, is 11,381
words.
Dated:
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PROOF OF SERVICE (Court of Appeal)
C ASE NAME: Howard Jarvis Taxpayers Assn. v. Bowen
CASE NUMBER: C060441 I, Daniel Dizon, declare: I am employed in the County of Sacramento, California. I am over the age of 18 years, and not a party to the within action. My business address is 925 L Street, Sacramento, California 95814. I am readily familiar with my employer’s business practice for collection and processing of correspondence for UPS, U.S. Mail, Fax Transmission and/or Personal Service.
On July 6, 2009, I caused the following documents to be served:
REAL PARTY IN INTEREST/RESPONDENT LEGISLATURE’S BRIEF on the parties listed as follows: X by placing a true copy thereof enclosed in a sealed
envelope with postage thereon fully prepaid, in the United States mail.
TIMOTHY A. BITTLE Howard Jarvis Taxpayers Association 921 Eleventh Street, Suite 1201 Sacramento, CA 95814 Attorney for Appellants
ROSS C. MOODY Deputy Attorney General Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA, 94102-7004
I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 6, 2009, at Sacramento, California. Daniel Dizon