The opinion
Filed 1/4/16
IN THE SUPREME COURT OF CALIFORNIA
HOWARD JARVIS TAXPAYERS )
ASSOCIATION et al., )
)
Petitioners, )
) S220289
v. )
)
ALEX PADILLA, as Secretary of )
State, etc., )
)
Respondent; )
)
LEGISLATURE OF THE STATE OF )
CALIFORNIA, )
)
Real Party in Interest. )
____________________________________)
In 2014, the California Legislature sought to place on the general election
ballot a nonbinding advisory question, Proposition 49. The measure would have
asked the electorate whether Congress should propose, and the Legislature ratify, a
federal constitutional amendment overturning the United States Supreme Court
decision Citizens United v. Federal Election Comm’n (2010) 558 U.S. 310.
In response to a petition for writ of mandate urging the unconstitutionality
of the Legislature‘s action, we issued an order to show cause and directed the
Secretary of State to refrain from taking further action in connection with
placement of Proposition 49 on the ballot. Our action did not rest on a final
determination of Proposition 49‘s lawfulness. Instead, we concluded ―the
proposition‘s validity is uncertain‖ and the balance of hardships from permitting
an invalid measure to remain on the ballot, as against delaying a proposition to a
future election, weighed in favor of immediate relief. (See American Federation
of Labor v. Eu (1984) 36 Cal.3d 687, 697.)
We now resolve the merits of Proposition 49‘s constitutionality. We
conclude: (1) as a matter of state law, the Legislature has authority to conduct
investigations by reasonable means to inform the exercise of its other powers;
(2) among those other powers are the power to petition for national constitutional
conventions, ratify federal constitutional amendments, and call on Congress and
other states to exercise their own federal article V powers; (3) although neither
constitutional text nor judicial precedent provide definitive answers to the
question, long-standing historical practice among the states demonstrates a
common understanding that legislatures may formally consult with and seek
nonbinding input from their constituents on matters relevant to the federal
constitutional amendment process; (4) nothing in the state Constitution prohibits
the use of advisory questions to inform the Legislature‘s exercise of its article V-
related powers; and (5) applying deferential review, Proposition 49 is reasonably
related to the exercise of those powers and thus constitutional. We deny the
instant petition for a writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
In Citizens United v. Federal Election Comm’n, supra, 558 U.S. 310, a
divided United States Supreme Court invalidated federal election law restrictions
on the political speech of corporations, holding that a speaker‘s identity as a
corporation, as opposed to natural person, could not justify greater regulation of
speech than the First Amendment would have otherwise permitted. (Id. at pp. 319,
365.) In the few years since its issuance, Citizens United‘s holding concerning the
speech rights of corporations has generated considerable democratic debate,
2
receiving criticism in the presidential State of the Union address,1 giving rise to
resolutions in Congress to amend the Constitution,2 and sparking calls for
reconsideration within the United States Supreme Court itself.3 Many have agreed
with the Supreme Court majority, while others have concluded the Constitution
must be amended to permit renewed restraints on corporate involvement in
popular elections.
The Legislature first joined issue with Citizens United in Assembly Joint
Resolution No. 1, introduced in 2012 and adopted by both houses of the
Legislature in 2014. (Assem. Joint Res. No. 1, Stats. 2014 (2013–2014 Reg.
Sess.) res. ch. 77.) The resolution declared: ―Corporations are legal entities that
governments create and the rights that they enjoy under the United States
Constitution should be more narrowly defined than the rights afforded to natural
persons.‖ (Ibid.) Acknowledging Citizens United‘s holding to the contrary, the
resolution exercised the Legislature‘s federal constitutional power to ―apply to the
United States Congress to call a constitutional convention for the sole purpose of
proposing an amendment to the United States Constitution that would limit
corporate personhood for purposes of campaign finance and political speech and
would further declare that money does not constitute speech and may be
legislatively limited.‖ (Assem. Joint Res. No. 1, Stats. 2014 (2013–2014 Reg.
Sess.) res. ch. 77; see U.S. Const., art. V [―The Congress . . . on the application of
1 President Barack H. Obama, State of the Union address to Congress (Jan.
27, 2010) 156 Congressional Record–House H415 (daily ed. Jan. 27, 2010).
2 Senate Joint Resolution No. 19, 113th Congress, 1st Session (2013); see
Senate Report No. 113–223, 1st Session, pages 2–3 (2013).
3 See American Tradition Partnership v. Bullock (2012) 567 U.S. ___, ___
[183 L.Ed.2d 448, 448–449, 132 S.Ct. 2490, 2491–2492] (dis. opn. of Breyer, J.)
(dissent joined by Ginsburg, Sotomayor & Kagan, JJ.).
3
the legislatures of two-thirds of the several states, shall call a convention for
proposing amendments . . . .‖].)
Separately, the Legislature enacted Senate Bill No. 1272 (2013–2014 Reg.
Sess.) (Senate Bill No. 1272), ―[a]n act to submit an advisory question to the
voters relating to campaign finance . . . .‖ (Stats. 2014, ch. 175.) A lengthy
preamble decried Citizens United, noted the article V process for amending the
United States Constitution, and asserted ―[t]he people of California and of the
United States have previously used ballot measures as a way of instructing their
elected representatives about the express actions they want to see them take on
their behalf, including provisions to amend the United States Constitution.‖ (Stats.
2014, ch. 175, § 2, subd. (m); see generally id., § 2.) The measure ―call[ed] a
special election to be consolidated with the November 4, 2014, statewide general
election‖ (Legis. Counsel‘s Dig., Sen. Bill No. 1272 (2013–2014 Reg. Sess.); see
Stats. 2014, ch. 175, § 3) and directed the Secretary of State to submit to voters at
that election an advisory question asking whether Congress should propose, and
the Legislature ratify, a constitutional amendment overturning Citizens United,
and thereafter to submit the results to Congress (Stats. 2014, ch. 175, § 4). The
measure became law in July 2014, after both houses passed it and the Governor
declined to sign or veto it. (See Cal. Const., art. IV, § 10, subd. (b)(3) [authorizing
bills to become statutes after gubernatorial inaction].)
Subsequently, then Secretary of State Debra Bowen designated the advisory
question Proposition 49 and began preparing ballot materials. The proposition
was to read: ―Shall the Congress of the United States propose, and the California
Legislature ratify, an amendment or amendments to the United States Constitution
to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310,
and other applicable judicial precedents, to allow the full regulation or limitation
of campaign contributions and spending, to ensure that all citizens, regardless of
4
wealth, may express their views to one another, and to make clear that the rights
protected by the United States Constitution are the rights of natural persons only?‖
(Stats. 2014, ch. 175, § 4, subd. (a).)
Petitioners Howard Jarvis Taxpayers Association and Jon Coupal
(collectively, Howard Jarvis) promptly filed a petition for writ of mandate in the
Third District Court of Appeal, seeking to prevent Secretary Bowen from
proceeding with placement of Proposition 49 on the November 2014 ballot. A
divided Court of Appeal denied relief.
Howard Jarvis next filed an original emergency petition for writ of mandate
in this court. After expedited briefing, we issued an order to show cause and
stayed Secretary Bowen from taking further actions in connection with Proposition
49 until after a final decision, effectively removing the advisory question from the
November 2014 ballot. The order explained, ―[t]ime constraints require the court
to decide immediately whether to permit Proposition 49 to be placed on the
November 4, 2014, ballot pending final resolution of this matter.‖ A five-justice
majority concluded Proposition 49‘s validity was uncertain and the cost of
postponing a potentially lawful proposition to a later ballot, a course the
Legislature itself had contemplated in an earlier version of the bill,4 was
outweighed by the cost of permitting a potentially invalid proposition to reach the
ballot. ― ‗The presence of an invalid measure on the ballot steals attention, time
and money from the numerous valid propositions on the same ballot. It will
confuse some voters and frustrate others, and an ultimate decision that the measure
is invalid, coming after the voters have voted in favor of the measure, tends to
4 See Senate Bill No. 1272 as amended March 28, 2014, section 1 (calling a
special election in conjunction with the November 2016 general election).
5
denigrate the legitimate use of the initiative procedure.‘ (American Federation of
Labor v. Eu (1984) 36 Cal.3d 687, 697.)‖5
Our actions in August 2014 resolved whether Proposition 49 could be
placed on the November 2014 ballot. Senate Bill No. 1272 directs only placement
on that ballot (Stats. 2014, ch. 175, §§ 3–4), and this case is thus technically moot.
But whether the Legislature ever has power to place advisory questions on a
statewide ballot is important and undecided, and in the event we were to conclude
Senate Bill No. 1272 was indeed constitutional, the Legislature could pass an
identical measure directing placement of the same advisory question on a future
ballot. In response to our order to show cause, Howard Jarvis and real party in
interest the State Legislature of California have briefed the larger questions the
petition raises: whether legislative advisory questions are ever permissible, and
whether in particular Proposition 49 is permissible or should be enjoined from
placement on any future statewide ballot. Notwithstanding that the passage of an
election cycle has interposed mootness as a potential obstacle to resolving a
significant election law issue, we conclude retaining jurisdiction and addressing
the merits is the better course here. (See Independent Energy Producers Assn. v.
McPherson (2006) 38 Cal.4th 1020, 1024; Costa v. Superior Court (2006) 37
Cal.4th 986, 994, 1005.)
5 Justice Liu issued a separate concurring statement defending the decision to
provisionally forestall a vote on Proposition 49, while Chief Justice Cantil-
Sakauye dissented from the portion of the order granting a stay, maintaining that
interim relief was unwarranted.
6
DISCUSSION
I. Proposition 49 and the State Legislature’s Power to Investigate
Our Constitution vests ―[t]he legislative power of this State . . . in the
California Legislature which consists of the Senate and Assembly . . . .‖ (Cal.
Const., art. IV, § 1.) It is in the nature of state constitutions that they, unlike the
federal Constitution, generally do not grant only limited powers. (Marine Forests
Society v. California Coastal Com. (2005) 36 Cal.4th 1, 29.) Consequently,
―unlike the United States Congress, which possesses only those specific powers
delegated to it by the federal Constitution, it is well established that the California
Legislature possesses plenary legislative authority except as specifically limited
by the California Constitution.‖ (Id. at p. 31.) Lying at the core of that plenary
authority is the power to enact laws. (California Redevelopment Assn. v.
Matosantos (2011) 53 Cal.4th 231, 254.) It has been said that pursuant to that
authority, ―[t]he Legislature has the actual power to pass any act it pleases,‖
subject only to those limits that may arise elsewhere in the state or federal
Constitutions. (Nougues v. Douglass (1857) 7 Cal. 65, 70.)
Although the Legislature notes in passing that Proposition 49 resulted from
a statute, it does not rest its argument for constitutionality on the syllogism that the
legislative power includes the power to enact statutes, Senate Bill No. 1272 takes
the form of an enacted statute, and thus for that reason alone the bill and
Proposition 49 are within a constitutional source of power. Instead, the
Legislature argues it has the inherent power to conduct an investigation in order to
select the wisest policy course. Pursuant to that implied investigative power, the
7
Legislature contends, it may enact a statute placing an advisory question before
the voters.6
We have since the early days of statehood recognized the act of creating a
legislature imbues that body with certain implied authority characteristic of
parliaments: ―A legislative assembly, when established, becomes vested with all
the powers and privileges which are necessary and incidental to a free and
unobstructed exercise of its appropriate functions. These powers and privileges
are derived not from the Constitution; on the contrary, they arise from the very
creation of a legislative body, and are founded upon the principle of self
preservation.‖ (Ex parte D. O. McCarthy (1866) 29 Cal. 395, 403.) The scope
and nature of these powers is ―to be ascertained by a reference to the common
parliamentary law.‖ (Ibid.) Many or most of a parliament‘s common law powers
relate to matters of self-regulation, such as determining membership and
establishing internal rules of procedure (see id. at pp. 403–404), and are not
relevant here. One, however, is: the inherent power ―[t]o investigate, by the
testimony of witnesses or otherwise, any subject or matter, in reference to which
[a legislature] has power to act.‖ (Id. at p. 404, italics omitted.)
The principal function of a legislature is ―to enact wise and well-formed
and needful laws‖ (In re Battelle (1929) 207 Cal. 227, 240), but a legislature
cannot exercise sound judgment without information. Accordingly, ―the necessity
of investigation of some sort must exist as an indispensable incident and auxiliary
to the proper exercise of legislative power.‖ (Id. at p. 241; see Special Assembly
Int. Com. v. Southard (1939) 13 Cal.2d 497, 503 [the power to enact legislation
6 Because we conclude the investigative power permits advisory questions in
connection with potential federal constitutional amendments, we express no
opinion about other potential sources of authority for advisory questions.
8
― ‗necessarily presupposes that the members of each house of the legislature must
investigate the necessity for legislation‘ ‖].) The details of how this implied power
is to be exercised are consigned to the Legislature‘s discretion in the first instance:
― ‗The ascertainment of pertinent facts for legislation is within the power of the
lawmaking department of government. When a legislative body has a right to do
an act it must be allowed to select the means within reasonable bounds.‘ ‖ (Parker
v. Riley (1941) 18 Cal.2d 83, 91; see also id. at p. 90 [―Intelligent legislation upon
the complicated problems of modern society is impossible in the absence of
accurate information on the part of the legislators, and any reasonable procedure
for securing such information is proper.‖].)
The investigative power is not unlimited. While the Legislature‘s powers
and functions are extensive (see Carmel Valley Fire Protection Dist. v. State of
California (2001) 25 Cal.4th 287, 299), they must share space with powers
reserved to the executive and judicial branches. Although the Legislature‘s
activities can overlap with the functions of other branches to an extent, the
Legislature may not use its powers to ―defeat or materially impair‖ the exercise of
its fellow branches‘ constitutional functions, nor ―intrude upon a core zone‖ of
another branch‘s authority. (Marine Forests Society v. California Coastal Com.,
supra, 36 Cal.4th at p. 45.) The investigative power, no less than any other, may
not be used to trench upon matters falling outside the legislative purview.
Even aside from separation of powers concerns, the investigative power
permits inquiry only into those subjects ―in reference to which [the Legislature]
has power to act.‖ (Ex parte D. O. McCarthy, supra, 29 Cal. at p. 404, italics
omitted.) Investigation is permitted as a necessary aid to the execution of other
legislative powers, not as an expansion of matters with respect to which the
Legislature may act. Where those other powers are subject to limit, so too an
investigation in support of them may be constrained. (See Special Assembly Int.
9
Com. v. Southard, supra, 13 Cal.2d at p. 504 [― ‗when the power to legislate
ceases, then the power to investigate for the purpose of aiding the legislature in
exercising this power ceases, or stated another way, when the main power of
legislating dies the incidental or implied power dies with it‘ ‖].) The investigative
power, constitutionally implied as necessary for the execution of the Legislature‘s
other powers, does not stand as an unbounded, freestanding power in its own right.
Finally, while the method of investigation is for the Legislature to choose in
its broad discretion, within reason (Parker v. Riley, supra, 18 Cal.2d at pp. 90–91),
we do not foreclose the possibility limits may arise from other constitutional
provisions and the values they embrace.
Given these constraints, to determine whether a particular legislative action
is authorized as an exercise of investigative power, we must in the first instance
ascertain whether a nexus exists between the matter investigated and some
potential action the Legislature has authority to undertake. Senate Bill No. 1272
seeks to conduct a statewide plebiscite on a proposed federal amendment and
deliver its results to Congress. (Id., § 4, subds. (a), (b).) The Legislature contends
the plebiscite should be understood as part of an investigation into how and
whether to exercise the Legislature‘s powers in connection with a potential future
federal constitutional amendment. Accordingly, we examine next the extent of the
role the federal Constitution contemplates for state legislatures in the amendment
process.
II. State Legislatures and Federal Constitutional Amendment
The federal Constitution vests state legislatures with certain powers and
duties in connection with amendments to the federal Constitution. (See U.S.
Const., art. V (article V).) Article V provides in relevant part: ―The Congress,
whenever two-thirds of both houses shall deem it necessary, shall propose
amendments to this Constitution, or on the application of the legislatures of two-
10
thirds of the several states, shall call a convention for proposing amendments,
which, in either case, shall be valid to all intents and purposes, as part of this
Constitution, when ratified by the legislatures of three-fourths of the several states,
or by conventions in three-fourths thereof, as the one or the other mode of
ratification may be proposed by the Congress . . . .‖ This ―unwieldy and cumbrous
machinery‖ (Barron v. Baltimore (1833) 32 U.S. 243, 250) for altering the
Constitution involves a two-stage process—proposal and ratification—with two
paths available at each stage. In the first stage, proposal, either Congress or a
national convention called for the purpose may propose an amendment or
amendments. In the second stage, ratification, a supermajority of the several
states, either through their legislatures or state conventions, must approve the
proposal for it to become law. (See United States v. Sprague (1931) 282 U.S. 716,
730; Bramberg v. Jones (1999) 20 Cal.4th 1045, 1056.)
The Constitution identifies two explicit roles for state legislatures, one at
each stage. At the proposal stage, a state legislature may apply to Congress for the
calling of a national convention. (See, e.g., Sen. Joint Res. No. 23, Stats. 1935
(1935 Reg. Sess.) res. ch. 145, pp. 2713–2714 [calling for a convention to adopt a
federal amendment permitting congressional regulation of intrastate commerce];
Sen. Joint Res. No. 25, Stats. 1911 (1911 Reg. Sess.) res. ch. 73, pp. 2183–2184
[calling for a convention to adopt a federal amendment providing for the direct
election of Senators].) At the ratification stage, if Congress chooses the legislative
ratification route, a state legislature may assent to, or reject, an amendment.
(Hawke v. Smith, No. 1 (1920) 253 U.S. 221, 226–228; see, e.g., Sen. Joint Res.
No. 22, Stats. 1971 (1971 Reg. Sess.) res. ch. 45, pp. 4161–4162 [ratifying the
26th Amend.].) All but one of the 15 amendments to the federal Constitution
adopted since California‘s statehood have been submitted to state legislatures for
approval.
11
If instead Congress chooses the state convention ratification route, as it did
for the Twenty-first Amendment repealing Prohibition, state legislatures may still
assume a role. Article V conveys power as much through ―what is reasonably
implied‖ as through ―what is expressed.‖ (Dillon v. Gloss (1921) 256 U.S. 368,
373.) It grants to Congress and state legislatures those powers ―necessary and
incidental‖ to the carrying out of explicitly required tasks. (State ex rel. Donnelly
v. Myers (Ohio 1933) 186 N.E. 918, 918; see Dillon, at pp. 373–376; State ex rel.
Tate v. Sevier (Mo. 1933) 62 S.W.2d 895, 898.)7 When Congress submitted the
repeal of Prohibition to state conventions, state legislatures were implicitly
charged with establishing the mechanics of the conventions. (State ex rel. Tate, at
p. 898; State ex rel. Donnelly, at p. 918.) Legislatures across the country enacted
legislation establishing how delegates were to be chosen and when and where
conventions would meet. (Brown, Ratification of the Twenty-first Amendment to
the Constitution of the United States (1938) pp. 521–700 [collecting laws]; see
Stats. 1933, ch. 149, pp. 598–602 [establishing the procedures for Cal.‘s
convention to ratify the 21st Amend. to the U.S. Const.].)
The several states have never successfully called for a constitutional
convention. To date, each of the 27 federal amendments is the product of a
proposal by Congress. But this does not mean state legislatures can play no part
until ratification. Legislatures are instituted with the inherent power to issue
resolutions (Jefferson, A Manual of Parliamentary Practice (1st ed. 1801) § XXI),
7 See also The Federalist No. 44 (Cooke ed., 1961) pages 304–305 (Madison)
(―No axiom is more clearly established in law, or in reason, than that wherever the
end is required, the means are authorised; wherever a general power to do a thing
is given, every particular power necessary for doing it is included‖); The
Federalist No. 33, supra, at page 204 (Hamilton) (―What is a power, but the ability
or faculty of doing a thing? What is the ability to do a thing, but the power of
employing the means necessary to its execution?‖).
12
statements that ―declare[] policy or entreat[] action‖ but without the binding force
of law (American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 712). From
the earliest days of the Republic, state legislatures have used that authority to press
Congress to wield its own article V proposal power. Unlike the convention power,
these resolutions have proven instrumental in reshaping the federal Constitution
through amendment; beginning with the very first post-Bill of Rights amendment,
one can find their influence underlying the Constitution‘s evolution.8
In 1793, the legislatures of Massachusetts and Virginia passed resolutions
appealing to their representatives in Congress for a constitutional amendment
overturning the United States Supreme Court‘s narrow construction of state
sovereign immunity in Chisholm v. Georgia (1793) 2 U.S. 419. (See New
Hampshire v. Louisiana (1883) 108 U.S. 76, 88 [Mass. res.]; Florida v. Georgia
(1855) 58 U.S. 478, 519–520 (dis. opn. of Campbell, J.) [Va. res.].) Senator Caleb
Strong of Massachusetts responded by moving that Congress propose such an
amendment (Florida v. Georgia, at p. 520; 4 Annals of Congress (3d. Cong. 1794)
pp. 25, 29–30), and the first post-Bill of Rights amendment was ratified in 1795
(U.S. Const., 11th Amend.). Similar resolutions preceded the Twelfth
8 At one point, the Drafters of the federal Constitution contemplated a more
direct role for the states in initiating change. The penultimate version of article V
would have granted the state legislatures themselves the power to propose
amendments, but in the final days of the 1787 convention that power was excised
in favor of the power to call for a convention. (See 2 Records of the Federal
Convention of 1787 (Farrand edit., 1966 ed.) pp. 559, 629–630.) The elimination
of a direct power to propose amendments has given rise to the current practice,
whereby state legislatures resolve to Congress that it should act, and Congress in
turn decides whether to invoke its article V proposal power. Such legislative
resolutions are firmly ensconced in our constitutional traditions and, we have
observed, are fully consistent with article V. (American Federation of Labor v.
Eu, supra, 36 Cal.3d at p. 707.)
13
Amendment, ratified in 1804. (See 13 Annals of Congress (7th Cong. 1st Sess.
1802) pp. 95–96 [Mass. res.]; 11 Annals of Congress (8th Cong. 1st Sess. 1803)
pp. 509, 602–603, 1285 [N.Y. res.]; id. at p. 629 (1802) [N.C. res.]; id. at p. 472
(1802) [Vt. res.].)
Aside from changes wrought by the Civil War, the Constitution remained
static for the next century, but when the next wave of changes came, state
legislative resolutions were again at the forefront. California‘s Legislature first
urged the direct election of senators to Congress in 1874, and did so again in 1893
and 1900.9 Numerous other states took similar action; by 1896, the Idaho,
Indiana, Iowa, Kansas, Ohio, Oregon, Wisconsin and Wyoming Legislatures had
joined California in instructing their congressional representatives in favor of
pursuing a federal amendment. (Sen. Rep. No. 54–530, 1st Sess., p. 9 (1896).)
Ultimately, dozens of states would join the chorus. (See Hall, The History and
Effect of the Seventeenth Amendment (1936) pp. 221–223, 512–528; Haynes, The
Election of Senators (1906) pp. 108–109.) These pleas spurred action in both
houses of Congress. (See, e.g., Ames, The Proposed Amendments to the
Constitution of the United States During the First Century of Its History (1897)
pp. 61–62 [noting the House of Representatives‘ passage of a proposed
amendment as a response to repeated state legislative resolutions requesting one];
9 See Assembly Concurrent Resolution No. 9 (1873–1874 Reg. Sess.)
resolution chapter 20, page 973; Assembly Joint Resolution No. 7 (1893 Reg.
Sess.) resolution chapter 15, page 620; Senate Joint Resolution No. 2 (1900 Ex.
Sess.) resolution chapter 7, pages 27–28. In 1911, the Legislature changed tacks
and invoked its express article V powers, applying for a constitutional convention
to propose an amendment providing for the direct election of Senators. (Sen. Joint
Res. No. 25, Stats. 1911 (1911 Reg. Sess.) res. ch. 73, pp. 2183–2184; see
Remarks of Sen. Jones, 46 Cong. Rec. 2770 (1911) [―possibly Idaho and
California got tired of knocking at the door of the Senate and concluded that they
would take their own method‖].)
14
45 Cong. Rec. 7109–7112 (1910) [introduction of proposed amend. by Sen. Owen
of Okla. following a resolution from his state legislature requesting one].) By
1913, direct election of senators was a part of the federal Constitution. (U.S.
Const., 17th Amend.)
State resolutions calling for a congressionally proposed federal amendment
also preceded the Nineteenth Amendment, which extended suffrage to women.
(O‘Connor, The History of the Women’s Suffrage Movement (1996) 49 Vand.
L.Rev. 657, 667.) The same was true in advance of the Twenty-first Amendment,
repealing Prohibition. (E.g., Conn. Pub. Acts 1931, ch. 272, p. 285, § 1.)
State pressure for constitutional change fails far more than it succeeds.
Over the years, state legislatures have submitted thousands of resolutions, but
Congress has proposed only a few dozen amendments. For example, state
legislatures disturbed by the United States Supreme Court‘s reapportionment
decisions10 responded with a mixture of article V convention calls and state
resolutions requesting that Congress itself propose a federal amendment restoring
to the states broad power over apportionment. Ten states asked for Congress to
propose an amendment, while one dozen exercised their own power to call for a
convention. (Kyvig, Explicit & Authentic Acts (1996) p. 374 & fn. 14.)
Ultimately, no amendment emerged from Congress, and an insufficient number of
convention calls were submitted to require a national convention.
As the successful Seventeenth Amendment movement and unsuccessful
reapportionment movement demonstrate, the use of a direct convention call and an
10 See Lucas v. Colorado Gen. Assembly (1964) 377 U.S. 713; Roman v.
Sincock (1964) 377 U.S. 695; Davis v. Mann (1964) 377 U.S. 678; Maryland
Committee v. Tawes (1964) 377 U.S. 656; WMCA, Inc. v. Lomenzo (1964) 377
U.S. 633; Reynolds v. Sims (1964) 377 U.S. 533; Baker v. Carr (1962) 369 U.S.
186.
15
entreaty to Congress to propose an amendment are not mutually exclusive
approaches. Just as different state legislatures may elect one route or the other to
constitutional change, so a particular state legislature may prefer a multi-front
approach and take both paths simultaneously. For example, in June 1935, with the
country in the throes of the Depression, the Legislature concluded reform of
federal securities and bonds taxation to ensure wealthy stock- and bondholders
bore a greater share of the costs of government was urgently needed. The
Legislature passed a resolution calling on Congress to propose a federal
amendment limiting tax exemptions for these forms of property. (Sen. Joint Res.
No. 21, Stats. 1935 (1935 Reg. Sess.) res. ch. 108, p. 2669.) Within weeks, it also
used its direct federal power to call for a constitutional convention on the same
subject. (Sen. Joint Res. No. 22, Stats. 1935 (1935 Reg. Sess.) res. ch. 144,
pp. 2712–2713.)
III. The Use of Advisory Questions to Facilitate the Exercise of
Article V-related Powers
Text and tradition thus firmly establish a state legislature‘s power to
petition for and participate in federal constitutional change, by proposing a
national convention for the consideration of an amendment, by issuing a resolution
calling on Congress to itself propose an amendment, by deciding whether to ratify
amendments that emerge from either of these paths, and by establishing ground
rules in the event ratification is to be by state convention. If a state legislature can
exercise these powers, that a legislature can also avail itself of implied
investigative powers to explore the wisdom or desirability of choosing one or
another course of action necessarily follows. (See Parker v. Riley, supra, 18
Cal.2d at pp. 90–91; In re Battelle, supra, 207 Cal. at pp. 240–241.)
As noted, however, the state law investigative power is not unbounded.
Any investigation must be tethered to the exercise of other established legislative
16
powers, and the method chosen in a particular instance must be reasonable. The
issue we face is whether the Legislature may pose to the electorate a single
advisory question concerning the People‘s support for a federal constitutional
amendment. Its resolution depends on the answer to two sub-questions. First, in
the abstract, does anything in the text or structure of the state or federal
Constitutions preclude the Legislature from posing an advisory question when
exercising its own article V authority or entreating other bodies with article V
authority (Congress and fellow state legislatures) to act?11 Second, if there is no
bar, is the specific question before us today, Proposition 49, a reasonable exercise
of that implied state investigative power?
A. The Role in a Republic of Representative Consultation with
the People
The texts of the state and federal Constitutions are silent on the issue we
face. The state investigative power is, as we have discussed, an inherent but
implicit power of a legislature. The state Constitution does not otherwise clearly
address the matter. The federal Constitution is even more terse: ―As a rule the
Constitution speaks in general terms, leaving Congress to deal with subsidiary
matters of detail as the public interests and changing conditions may require; and
Article V is no exception to the rule.‖ (Dillon v. Gloss, supra, 256 U.S. at p. 376,
fn. omitted.) Regarding what state legislatures may do when carrying out their
article V roles, the federal Constitution leaves the scope of the powers and their
limits unarticulated.
11 Because Proposition 49 relates solely to the exercise of power in
connection with article V, we reserve for another day whether, in support of other
powers not implicated here, an advisory ballot measure would be a permissible
means of legislative investigation.
17
As for precedent, in our past decisions elucidating the constitutional
principles that govern legislative investigations we have not been called upon to
determine whether the investigative power may include the enactment of a statute
placing an advisory measure on the statewide ballot. (Cf. Parker v. Riley, supra,
18 Cal.2d at p. 91 [approving formation of an independent commission]; In re
Battelle, supra, 207 Cal. at p. 241 [approving formation of investigative
committees]; Ex parte D. O. McCarthy, supra, 29 Cal. at p. 404 [approving
summoning of witnesses].)
Where neither text nor precedent affords guidance, sometimes a ―page of
history is worth a volume of logic.‖ (New York Trust Co. v. Eisner (1921) 256
U.S. 345, 349 (maj. opn. of Holmes, J.); see Dyer v. Blair (N.D.Ill. 1975) 390
F.Supp. 1291, 1303–1307 [looking to historical practice to understand the proper
scope of state legislative power in connection with federal constitutional
amendments].) The history of legislative consultation with the people, and in
particular the historical use of advisory questions to inform judgments concerning
federal constitutional matters, is illuminating here.
In 1721, noted British Whig and republican Thomas Gordon, writing
pseudononymously as Cato, declared: ―[T]he difference between free and
enslaved countries lies principally here, that in the former, their magistrates must
consult the voice and interest of the people; but in the latter, the private will,
interest, and pleasure of the governors, are the sole end and motives of their
administration.‖ (1 Trenchard & Gordon, Cato‘s Letters (Hamowy edit., 1995)
No. 38 (July 22, 1721) The Right and Capacity of the People to judge of
Government (Gordon) p. 272.)12 The seeds of a practice of consultation, the
12 Cato‘s Letters, a series of republican critiques of tyranny and defenses of
liberty and free speech, were broadly circulated and heavily influential among this
(footnote continued on next page)
18
nonbinding solicitation of the people‘s views to inform legislative judgments on
significant matters, were planted in England in the 17th century. Initially, at least,
the practice focused as much on the shaping of public opinion as its solicitation:
―With the development of popular sovereignty in the 1640s, various members of
Parliament opened communications with constituents to gain popular support for
Parliamentary measures directed against the King.‖ (Morgan, Inventing the
People (1988) p. 220.) By the 18th century, however, a more genuine interest in
popular views could be found; members of the House of Commons ―often‖ would
delay action ―until they had consulted their constituents.‖ (Gibbons, Ideas of
Political Representation in Parliament 1651–1832 (1914) p. 25; see 1 Cato‘s
Letters, at p. 271 [―[O]ur records afford instances, where the House of Commons
have declined entering upon a question of importance, till they had gone into the
country, and consulted their principals, the people: So far were they from thinking
that private men had no right to meddle with government.‖].)
Consultation shortly took root in the colonies and soon became ―much
more an American technique than a British one.‖ (Reid, The Concept of
Representation in the Age of the American Revolution (1989) p. 86.) In New
York and Massachusetts, consultation flourished; occasionally it was resorted to
even in other colonies such as Pennsylvania that did not have an established town
meeting structure through which to assess the popular will. (Id. at pp. 86–95.)
When the Continental Congress was faced with its most momentous decision in
the spring of 1776, it did not act unilaterally, but instead ―delayed its vote on
(footnote continued from previous page)
nation‘s founding generation. (Bailyn, The Origins of American Politics (1968)
pp. 53–55; Rossiter, Seedtime of the Republic: The Origin of the American
Tradition of Political Liberty (1953) pp. 141–142, 357.)
19
Independence by three weeks ‗to give an Oppertunity [sic] to the Delegates from
those Colonies, which had not yet given Authority to adopt this decisive Measure,
to consult their Constituents.‘ ‖ (Maier, American Scripture: Making the
Declaration of Independence (1997) p. 67 [quoting a letter from Maryland‘s
congressional representatives]; see Kruman, Between Authority & Liberty (1997)
p. 77.) Maryland‘s delegates desired ― ‗the fair and uninfluenced Sense of the
People‘ on Independence‖ and asked their colonial assembly to ― ‗endeavour to
collect the opinion of the people at large in some Manner or other.‘ ‖ (Maier, at
p. 67.) So too Massachusetts; there, the assembly asked every town to hold a
special meeting, debate whether to declare independence, and advise its
representatives where its people stood. (Id. at p. 59; see Luce, Legislative
Principles (1930) p. 570; Reid, at p. 102.) And in 1780, New York‘s assembly
sought popular instruction concerning whether to draft a colonial constitution.
(Kruman, Between Authority & Liberty, supra, at p. 77.) Pre-constitutional
America thus had an established tradition whereby the people‘s representatives
could, if they so chose, solicit the people‘s views to inform momentous decisions.
The framers of the federal Constitution likewise accorded the people‘s
views a foundational role. (See The Federalist No. 22, supra, at p. 146 (Hamilton)
[the consent of the people is the ―pure original fountain of all legitimate
authority‖]; The Federalist No. 49, supra, at p. 339 (Madison) [―the people are the
only legitimate fountain of power‖].) The First Amendment, Virginia
Representative James Madison explained, ensured ―the people may therefore
publicly address their representatives[,] may privately advise them, or declare their
sentiments by petition to the whole body; in all these ways they may communicate
their will.‖ (1 Annals of Congress (1st Cong. 1789) p. 766.) These popular views,
Alexander Hamilton wrote, should matter (up to a point): ―The republican
principle demands, that the deliberate sense of the community should govern the
20
conduct of those to whom they entrust the management of their affairs; but it does
not require an unqualified complaisance to every sudden breese of passion, or to
every transient impulse which the people may receive from the arts of men, who
flatter their prejudices to betray their interests.‖ (The Federalist No. 71, supra, at
p. 482 (Hamilton).) The opinion of Thomas Gordon as Cato that in a free nation
representatives could and should ― ‗consult the Voice and Interest of the People‘ ‖
was one ―[a]ll [the Founders] could agree with.‖ (1 The Founder‘s Constitution
(Kurland & Lerner edits., 1987) p. 41.) The founding generation gave proof of
their principles when they submitted the Constitution, not to the state legislatures,
but to popular conventions for ratification. (U.S. Const., art. VII; see The
Federalist No. 43, supra, at p. 296 (Madison) [―The express authority of the
people alone could give due validity to the Constitution.‖]; Remarks of Col.
Mason, 2 Records of the Federal Convention of 1787, supra, at p. 88 [the
Constitution must be submitted ―[t]o the people with whom all power remains that
has not been given up in the Constitutions derived from them‖].)
Although this history does not clearly delineate the permissible means of
formal consultation, it reflects an implicit understanding that republican principles
generally permit representatives to inquire of the people on fundamental matters.
Consistent with that understanding, for more than a century, states have employed
the particular means at issue here—an advisory ballot question—to inform
decisions concerning federal constitutional matters.
Until adoption of the Seventeenth Amendment, the federal Constitution
vested the selection of senators in state legislatures. (See U.S. Const., art. I, § 3.)
By the late 19th century many states, especially in the Midwest and West, were
inclined to transfer that power to the people themselves. (1 Haynes, The Senate of
the United States: Its History and Practice (1938) pp. 96–104; Rossum, California
and the Seventeenth Amendment in The California Republic (Janiskee & Masugi
21
edits., 2004) pp. 83–85.) In 1891, our Legislature placed on the next year‘s
general election ballot an advisory question, asking the voters whether they were
for, or against, ― ‗the election of United States Senators by the direct vote of the
people,‘ ‖ with the results to be submitted to the President, Congress, and every
state in the Union. (Stats. 1891, ch. 48, p. 46.) The result was a landslide; better
than 93 percent of those casting ballots favored direct election. (Rossum, at p. 84;
Hall, The History and Effect of the Seventeenth Amendment, supra, at p. 230.) So
informed, the Legislature requested that California‘s senators and representatives
propose a constitutional amendment providing for the direct election of senators.
(Assem. Joint Res. No. 7, Stats. 1893 (1893 Reg. Sess.) res. ch. 15, p. 620.)
Nevada in 1893 and Illinois in 1902 followed suit. The Nevada
Legislature, viewing it as ―expedient that the wishes of the people of this State
upon the subject of the election of United States Senators should be unmistakably
expressed‖ (1893 Nev. Stats., ch. 17, pp. 21–22), placed on the ballot an advisory
question and forwarded the results (nearly eight to one in favor of amendment) to
Congress and other states‘ Governors (id., § 3, p. 22; Haynes, The Election of
Senators, supra, at pp. 106, 110). Illinois‘ Legislature sought general
constitutional guidance, asking the polity whether ― ‗the next General Assembly
[should] take the necessary steps, under Article 5 of the Constitution of the United
States, to bring about the election of United States Senators by the direct vote of
the people?‘ ‖ (Haynes, at p. 110, fn. 10.) Guidance it got; by a nearly six-to-one
margin, voters favored legislative efforts to bring about a federal amendment. (Id.
at p. 106.) So advised, the next year the Illinois Legislature petitioned for a
national constitutional convention. (See id. at p. 108.)
Prior to ratification of the Seventeenth Amendment, our Legislature turned
again to the advisory question mechanism to obtain advice on whom to select for
the Senate under its not-yet-superseded federal power to choose senators. (Stats.
22
1909, ch. 405, § 2, p. 691 [providing for an ―advisory vote for the purpose of
ascertaining the sentiment of the voters‖ concerning senatorial candidates]; Stats.
1911, ch. 387, § 1, pp. 704–705 [directing that future general election ballots
include the names of party candidates for Senate, with results of the advisory
referenda to be forwarded to the Legislature].) Here, California was following the
lead of the many other legislatures that saw fit to inform their exercise of their
federal power to choose senators through advisory plebiscites. Nebraska was the
first state to adopt this course, in 1875 (Kyvig, Explicit & Authentic Acts, supra,
at p. 210); in 1899, the Nevada Legislature adopted an advisory procedure
essentially identical to what California later enacted (Nev. Stats. 1899, ch. 71,
pp. 86–87); and by 1911, more than half of all states had some form of advisory
plebiscite in place (Kyvig, at p. 210; see generally Haynes, The Election of
Senators, supra, at pp. 140–150).
In the 1920s and 1930s, as discontent over Prohibition grew, many state
legislatures submitted to the people advisory questions asking whether the
Eighteenth Amendment should be repealed. The Rhode Island Legislature
declared it ―proper and desirable that each qualified elector should be permitted to
exercise his constitutional right to register his opinion on this broad social and
economic question‖ and directed that the results be sent to Congress. (R.I. Acts
1930, ch. 1507, pp. 63–64.) The people of Rhode Island favored, by more than
three to one, constitutional change. (Assn. Against the Prohibition Amendment,
32 Reasons for Repeal (1932) p. 34.) The results were the same in Wyoming,
where the legislature solicited the electorate‘s views and ordered the secretary of
state to transmit the results to Congress (Wyo. 1931 Sess. Laws, H. J. Res. No. 4,
p. 249); better than 70 percent favored a constitutional amendment (Ann. Rep. of
the President of the Association Against the Prohibition Amendment for the Year
1932 (1933) p. 12). Similar votes took place across the country. (See, e.g., Conn.
23
Pub. Acts 1931, ch. 272, pp. 285–286, §§ 2–5 [petitioning Congress for repeal of
the 18th Amend., subject to the electorate in an advisory vote signaling its desire
for an amendment]; La. Acts 1932, Act No. 241 (La. Sen. Conc. Res. No. 3),
p. 767, §§ 1–5 [submitting to an advisory vote a joint resolution petitioning
Congress to call a constitutional convention to repeal or modify Prohibition]; Nev.
Stats. 1925, Sen. Joint Res. No. 7, p. 358 [calling for a constitutional convention in
the wake of a landslide pro-repeal advisory vote]; 32 Reasons for Repeal, at p. 34
[cataloguing the results of these and other advisory votes]; Ann. Rep. of the
President, at pp. 9–12 [same].) Repeal followed anon, proposed by Congress and
ratified by the end of 1933. (U.S. Const., 21st Amend.)
More recently, the Florida Legislature placed on the ballot two advisory
questions asking whether the people supported federal constitutional amendments
to prohibit forced busing and permit school prayer. (Fla. Acts 1972, ch. 72–3,
pp. 114–115, §§ 1–2.) And in 2010, the Florida Legislature applied to Congress
for the calling of a constitutional convention to propose a balanced budget
amendment (Fla. Sen. Conc. Res. No. 10 (2010); see 160 Cong. Rec. S5563–
S5564 (daily ed. Sept. 11, 2014)) and again placed on a subsequent general
election ballot a nonbinding advisory question asking whether the federal
Constitution should ―be amended to require a balanced federal budget without
raising taxes?‖ (Florida Sen. Bill. No. 2742 (2010 Reg. Sess.) § 1).
State legislatures have also seen fit to resort to advisory questions when
debating whether to ratify a proposed amendment. In the 1920s, Congress sent to
the states an amendment overturning United States Supreme Court decisions
limiting Congress‘s regulatory power over child labor. (H. J. Res. No. 184, 68th
Cong., 1st Sess. (1924) 43 Stat. 670; see Bailey v. Drexel Furniture (1922) 259
U.S. 20; Hammer v. Dagenhart (1918) 247 U.S. 251.) Before acting, the
Massachusetts legislature submitted the question of ratification to an advisory vote
24
of the people. (Kyvig, Explicit & Authentic Acts, supra, at p. 259.) In the 1970s,
the Nevada Legislature had before it the proposed Equal Rights Amendment; as
had Massachusetts a half-century earlier, it turned first to the electorate, asking
voters whether they ―recommend[ed] that the Nevada legislature ratify‖ the
proposed amendment. (Nev. Stats. 1977, ch. 174, § 5, p. 322; see Kimble v.
Swackhamer (1978) 439 U.S. 1385, 1386.) Contemporaneously, the Idaho
Legislature adopted a rule that it would act on proposed federal amendments only
after obtaining the results of a nonbinding popular vote on any proposed
amendment. (Idaho Code former § 34–2217, repealed by Idaho Stats. 1995, ch.
227, § 1.) When the Twenty-seventh Amendment, regulating congressional
salaries, was up for consideration in 1988, the legislature put the matter to a vote
and, after the electorate strongly supported it, ratified the amendment. (Kyvig, at
p. 466; Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-
seventh Amendment (1992) 61 Fordham L.Rev. 497, 539.)
When contested, these actions have been upheld. California‘s provision for
including an advisory senatorial vote on primary election ballots was challenged
as violating the one subject rule because it was adopted as part of an act also
regulating binding, not merely advisory, primary voting. (Socialist Party v. Uhl
(1909) 155 Cal. 776, 781; see Cal. Const., art. IV, § 9 [one subject rule].) In the
course of rejecting the challenge, this court held: ―There is nothing in the
constitution—either the amendment of [former] section 2½ of article II, or any
other provision—which prohibits the legislature from providing at a primary for
an expression of a choice as to a candidate for United States senator. It is within
the general legislative power to do so, and that it has provided for this advisory
vote at a primary election is for the purpose of convenience‖ and sufficiently
germane to the subject of primary elections. (Socialist Party, at p. 782.) We
considered ―whether legislation in connection with primary laws granting such
25
right of expression of a choice is prohibited by the constitutional provision
particularly under consideration [relating to the one subject rule], or any other‖
and concluded it was not. (Ibid., italics added.)
The Nevada Supreme Court rejected a federal constitutional challenge to
the Nevada Equal Rights Amendment vote, explaining that the advisory question
was not ―a limitation on legislative power violative of article V of the federal
constitution‖ but instead ―simply specifie[d] a means by which to assist the
legislature whether to consent or not to consent to the proposed amendment.‖
(Kimble v. Swackhamer (Nev. 1978) 584 P.2d 161, 162–163.) Then Justice
Rehnquist, acting as Circuit Justice, rejected an application for summary reversal
of this decision, agreeing that the advisory question posed no article V problem:
―Under the Nevada statute in question, ratification will still depend on the vote of
the Nevada Legislature, as provided by Congress and by Art. V. I would be most
disinclined to read either Hawke, supra, [253 U.S. 221,] or Leser [v. Garnett
(1922) 258 U.S. 130], or Art. V as ruling out communication between the
members of the legislature and their constituents.[13] If each member of the
Nevada Legislature is free to obtain the views of constituents in the legislative
district which he represents, I can see no constitutional obstacle to a nonbinding,
advisory referendum of this sort.‖ (Kimble v. Swackhamer, supra, 439 U.S. at
pp. 1387–1388.) Kimble suggests, at a minimum, ―there are at least some
circumstances in which the submission of a ballot proposition relating to an
13 The United States Supreme Court in Hawke v. Smith, No. 1, supra, 253
U.S. at pages 228–230 invalidated an attempt to subject a legislature‘s decision
respecting ratification to a state law referendum because doing so would contradict
article V‘s allocation of authority to the legislatures themselves. In Leser v.
Garnett, supra, 258 U.S. at page 137, the Supreme Court reaffirmed that a state
legislature‘s actions in ratifying amendments are purely federal in character and
―transcend[] any limitations sought to be imposed by the people of a State.‖
26
amendment to the federal Constitution will not violate Article V‖ and establishes
that article V does ―not completely foreclose[] a state‘s electorate from
contributing some input to the amendment process.‖ (Bramberg v. Jones, supra,
20 Cal.4th at p. 1058; see American Federation of Labor v. Eu, supra, 36 Cal.3d at
p. 707 [a popular initiative proposing in nonbinding fashion a federal amendment
would raise no art. V issues].)
In 1986, the Idaho Attorney General considered the constitutionality of the
then extant Idaho requirement that decisions whether to ratify federal amendments
be deferred until after a nonbinding advisory referendum. (See Idaho Code former
§ 34–2217, repealed by Idaho Stats. 1995, ch. 227, § 1.) The Attorney General did
not doubt that state legislatures could voluntarily submit nonbinding advisory
questions concerning federal constitutional amendments to the electorate in
individual cases; the legislature could choose to follow a ―referendum first,
legislative decision second‖ rule. The only potential problem with the advisory
vote law involved its attempt to constrain future legislatures; that is, while any
legislature in its discretion could decide to pose an advisory question before voting
on ratification, the current state legislature could not mandate that future
legislatures be required to do so. (Ops. Idaho Atty. Gen. No. 86–9 (1986).)
B. Advisory Questions and State Constitutional Limits
Legislatures in California and elsewhere thus have established a tradition of
using advisory ballot measures to determine the will of the people on questions
pertaining to amendments to the federal Constitution. While ― ‗usage and custom,
no matter how long continued, cannot create a right in the legislature that
otherwise it does not possess‘ ‖ (Special Assembly Int. Com. v. Southard, supra,
13 Cal.2d at pp. 508–509), we see no evidence the drafters of the California
Constitution intended to deprive the Legislature of a tool other state legislatures
27
have long used to ensure they are truly speaking on behalf of their states in the
federal constitutional amendment process.
Nevertheless, Howard Jarvis offers a series of arguments for why the
structure and implications of various provisions of our state Constitution
necessarily bar the Legislature from using an advisory question as a means of
investigating the will of the people with respect to federal constitutional
amendments. We consider four separate contentions: (1) the Constitution
confines the means of investigation to investigation by committee; (2) the
Constitution confines the Legislature‘s access to the ballot to specifically
enumerated circumstances that do not include advisory questions; (3) the
Constitution prohibits anyone from placing on the ballot a measure that does not
enact law; and (4) the Constitution allocates legislative power to the people and
the Legislature in a way that preserves clear lines of accountability and implicitly
prohibits devices such as advisory questions that would blur those lines. None has
merit; no constitutional provision or set of provisions prohibits the use of advisory
ballot measures concerning federal constitutional amendments.
1. The Committees Clause
Howard Jarvis argues that the power to investigate is limited by California
Constitution, article IV, section 11, which authorizes investigations by committee.
Under that provision, ―[t]he Legislature or either house may by resolution provide
for the selection of committees necessary for the conduct of its business, including
committees to ascertain facts and make recommendations to the Legislature on a
subject within the scope of legislative control.‖ (Ibid.) From this language,
Howard Jarvis reasons that the Legislature may ascertain facts only through
committee investigations, and not by any other means. This argument
misapprehends the import of the committees clause.
28
Prior to the clause‘s adoption in 1940 (see Cal. Const., art. IV, former § 37,
added by initiative, Gen. Elec. (Nov. 5, 1940)), the extent of the Legislature‘s
ability to act through less than all of the members of one house was the subject of
dispute. (See Swing v. Riley (1939) 13 Cal.2d 513; Special Assembly Int. Com. v.
Southard, supra, 13 Cal.2d 497; In re Battelle, supra, 207 Cal. 227.) In Battelle,
this court considered but rejected the argument that the Legislature could not
investigate by committee, explaining that the Constitution implied a power to
investigate and committee investigations were a permissible exertion of that
power. (Id. at pp. 240–244.) In Special Assembly, we again construed the state
Constitution as implying a power to investigate, including a power to investigate
by committee. (Special Assembly, at pp. 502–504.) We held, however, that the
Legislature was not a continuing body, that it ceased to exist between sessions,
that its express powers ceased to exist at the same time, and accordingly that the
implied power to investigate died too. (Id. at pp. 504–507.) Consequently, an
interim committee established by the Assembly to conduct investigations after
legislative adjournment and report to the next session of the Legislature was
unconstitutional. (Id. at p. 509; see Swing v. Riley, at pp. 517–520 [extending the
same conclusion to a committee created by a joint resolution of both houses].)
At the next general election after Special Assembly, the Legislature placed
on the ballot a constitutional amendment making explicit the power to investigate
and act by committee and overturning the holdings that that power did not extend
between legislative sessions.14 A ballot argument in support of amendment
14 As enacted, California Constitution, article IV, former section 37 specified
that ―[t]he resolution creating any such committee may authorize it to act either
during sessions of the Legislature or after final adjournment.‖ (Voter Information
Guide, Gen. Elec. (Nov. 5, 1940) text of Assem. Const. Amend. No. 2, p. 17.)
When the state Constitution was revised and modernized in 1966, the committees
(footnote continued on next page)
29
quoted directly from In re Battelle, supra, 207 Cal. at page 241: In ― ‗the
preparation of wise and timely laws the necessity of investigation of some sort
must exist as an indispensable incident and auxiliary to the proper exercise of
legislative power.‘ ‖ (Voter Information Guide, Gen. Elec. (Nov. 5, 1940)
argument by Assemblymember Voigt in favor of Assem. Const. Amend. No. 2,
p. 24.) Another argument explained that, although the inherent power to
investigate by committee had always been recognized, ―[a] recent court decision
has held, however, that this practice in our State is without constitutional
authority.‖ (Id., argument by Assemblymember Cronin, at p. 24 [implicitly
referencing Special Assembly].) The amendment‘s purpose was to supply,
explicitly, the constitutional authority Special Assembly had found lacking. (Id., at
p. 24.)
Accordingly, we read the text of the committees clause as language of
expansion, not restriction. The ballot argument in support endorses extant
precedent establishing an implied power of investigation. The amendment simply
removes doubt over whether the Legislature may investigate and carry out other
necessary functions also by way of committee; it does not require the Legislature
henceforth to inform itself of facts bearing on the need for action only by way of
committee. Nothing in California Constitution, article IV, section 11 constrains
the Legislature from placing advisory questions on the ballot.
(footnote continued from previous page)
clause was moved to its present location, article IV, section 11. Six years later, the
Legislature‘s calendar was amended to eliminate lengthy periods of adjournment
between sessions, and the language relating to inter-session committees was
deleted as superfluous. (See Prop. 4, as approved by voters, Gen. Elec. (Nov. 7,
1972).)
30
2. Legislative Access to the Ballot
Various provisions of the state Constitution expressly authorize the
Legislature to place measures on the ballot for voter approval. The Legislature
may amend or repeal a statute adopted by voter initiative, but generally only if the
amendment or repeal is first submitted to and approved by the electorate. (Cal.
Const., art. II, § 10, subd. (c).) The Legislature may authorize the issuance of
bonds, but above a certain amount they must be submitted to the voters for
approval. (Id., art. XVI, § 1.) Finally, the Legislature may propose state
constitutional amendments, but such amendments must be submitted to the voters
for approval. (Id., art. XVIII, §§ 1, 4.)
Invoking the interpretive canon expressio unius est exclusio alterius,
Howard Jarvis argues these three specific instances in which legislative action
must be ratified by the voters demonstrate no others are permitted. (See also dis.
opn., post, at pp. 6–7 [arguing that the constitutional scheme precludes legislative
access to the ballot in other circumstances].) Under the canon, the explicit
mention of some things in a text may imply other matters not similarly addressed
are excluded. (In re J. W. (2002) 29 Cal.4th 200, 209; Lake v. Reed (1997) 16
Cal.4th 448, 466.) Applied to specific grants of power, the canon may support
― ‗ ―an implied negative; an implication that no other than the expressly granted
power passes by the grant; that it is to be exercised only in the prescribed
mode.‖ ‘ ‖ (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196; see Wheeler
v. Herbert (1907) 152 Cal. 224, 237 [applying the canon to interpret the scope of
the Legislature‘s powers under the state Constitution].)
Here, however, the canon has no application. The expressio unius
inference arises only when there is some reason to conclude an omission is the
product of intentional design. (Marx v. Gen. Revenue Corp. (2013) 568 U.S. ___,
___ [185 L.Ed.2d 242, 253, 133 S.Ct. 1166, 1175]; Silverbrand v. County of Los
31
Angeles (2009) 46 Cal.4th 106, 126.) The text must contain a specific list or
facially comprehensive treatment. (See Barnhart v. Peabody Coal Co. (2003) 537
U.S. 149, 168 [the canon ―has force only when the items expressed are members
of an ‗associated group or series,‘ justifying the inference that items not mentioned
were excluded by deliberate choice, not inadvertence‖]; Chevron U.S.A., Inc. v.
Echazabal (2002) 536 U.S. 73, 81 [the canon requires a ―series of terms from
which an omission bespeaks a negative implication‖]; In re Sabrina H. (2007) 149
Cal.App.4th 1403, 1411 [the canon ―is generally applied to a specific statute,
which contains a listing of items to which the statute applies‖ and may not have
any application to ―an entire code‖].) The provisions Howard Jarvis relies on are
widely separated, both in where they are codified and as to how and when they
were adopted. The provision allowing the Legislature to propose to the electorate
amendments to initiative measures was adopted by the voters at the 1946 general
election. (See Cal. Const., art. IV, former § 1b, enacted by Prop. 12 (Nov. 5, 1946
Gen. Elec.); People v. Kelly (2010) 47 Cal.4th 1008, 1038.) The provision
providing for bond measures to be placed on the ballot was adopted at the 1878–
1879 Constitutional Convention. (Cal. Const., art. XVI, § 1.) The provision
providing for the Legislature to place constitutional amendments on the ballot
traces all the way back to California‘s first Constitution. (Cal. Const. of 1849,
art. X, § 1.) Nothing suggests these provisions were intended as a conscious and
comprehensive treatment, such that one might infer powers not explicitly
conveyed were intentionally omitted.
More fundamentally, Howard Jarvis‘s argument rests on a misconception as
to the nature of the constitutional provisions it cites. Each involves not a grant of
authority but a limitation on legislative power—an occasion when the Legislature
must turn to the voters, where otherwise it would have been at liberty to act
without voter input. Whatever might be said for the logic of inferring from a few
32
specific grants of authority the absence of some more general authority, that logic
cannot be turned on its head to infer from a few specific limits on legislative
authority the presence of a broader, unstated limit on legislative authority. The
expressio unius canon, were we to apply it here, would at most support the
inference that the three cited instances are an exhaustive list of the circumstances
in which submission of a matter to a plebiscite is mandatory. The canon and the
scattered provisions Howard Jarvis cites offer no guidance at all on the actual
question before us, whether the Legislature in its discretion may turn to the voters
to ascertain their will concerning a possible amendment to the federal
Constitution.
3. The Use of the Ballot for Nonlawmaking Purposes
In a closely related argument, Howard Jarvis notes this court‘s holding that
the people by initiative may place on the ballot only measures that enact law.
(American Federation of Labor v. Eu, supra, 36 Cal.3d at pp. 694, 708–714; see
Cal. Const., art. II, § 8, subd. (a) [―The initiative is the power of the electors to
propose statutes and amendments to the Constitution and to adopt or reject
them.‖].) From this, Howard Jarvis reasons that the people‘s initiative and
referendum power and the constitutional provisions mandating electoral review of
particular actions by the Legislature (Cal. Const., art. II, §§ 8–10; id., art. XVI,
§ 1; id., art. XVIII, §§ 1, 4) define an exhaustive list of matters that may be placed
on the ballot, that they all involve the adoption of law, and accordingly that the
Constitution forbids ballot measures that do not enact laws.
This contention is a variation on the expressio unius argument just
considered and rejected. It depends on the assumption that these scattered
provisions of the Constitution—i.e., adding the people‘s right to place initiatives
and referenda on the ballot to the Legislature‘s duty to place certain matters on the
ballot—define the exclusive list of matters the electorate may vote on. But there is
33
no reason to infer provisions governing what the people may put on the ballot, and
what the Legislature must put on the ballot, limit the wholly separate category,
what the Legislature may put on the ballot. Expressio unius est exclusio alterius
has no interpretive force here.
Howard Jarvis and the dissent contend that if, under American Federation
of Labor v. Eu, supra, 36 Cal.3d 697, the people are limited to placing on the
ballot only proposed laws, then the Legislature must be too. We reject that
argument as well. Our decision in Eu defined limits on the initiative power, not
limits on what the Legislature might do or limits on the proper use of the ballot.
Indeed, we explicitly recognized that the Legislature‘s powers were broader than
those conveyed by the initiative power: ―Even under the most liberal
interpretation, however, the reserved powers of initiative and referendum do not
encompass all possible actions of a legislative body.‖ (Id. at p. 708.) When the
people established the Legislature, they conveyed to it the full breadth of their
sovereign legislative powers. (Nougues v. Douglass, supra, 7 Cal. at p. 69.)
When they adopted the initiative power in 1911, they restored to themselves only a
shared piece of that power. (See Eu, at p. 708.) There is nothing incongruous in
reading the state Constitution as allocating broader powers to the deliberative body
representing the people than to the people directly. Such is the nature of a
republic. (See generally U.S. Const., art. IV, § 4 [guaranteeing a republican form
of government]; Browne, Rep. of Debates in Convention of Cal. on Formation of
State Const. (1850) pp. 393–394 [noting the fundamentally republican nature of
the state Constitution]; 1 Willis & Stockton, Debates & Proceedings, Cal. Const.
Convention 1878–1879, p. 242 [the state Constitution implicitly establishes a
republican form of government].)
Of course Eu of itself does not establish that the Legislature has the specific
authority to ask an advisory question about a federal constitutional amendment
34
where the people might lack the power to opine unilaterally on the same matter;
that issue, central to this case, was far afield from the question in Eu. The point,
rather, is that nothing in Eu forbids this understanding, while the substantially
broader powers assured the Legislature by the federal Constitution‘s article V and
the state Constitution‘s article IV, section 1, in contrast to the narrower powers
restored to the people by the latter section and the state Constitution‘s article II,
section 8, support it.
Nor, contrary to the concern of our concurring colleague Justice Liu, does
recognizing that the Legislature may pose an advisory question about
constitutional matters impermissibly restore to the people a power constitutionally
forbidden them. The state Constitution does not prohibit the people from speaking
on such questions at the ballot box; it simply fails, in article II, section 8, as
construed in Eu, to authorize their doing so unilaterally. That they may not speak
when, pursuant to sources of constitutional power outside article II, section 8, they
are asked, does not follow.
4. Accountability
Finally, Howard Jarvis argues the state Constitution contains an implicit
structural barrier to the use of advisory questions by the Legislature. It asserts
new laws may come into being by legislative enactment, with no participation by
the people, or they may come into being by initiative, with no involvement from
the Legislature (Cal. Const., art. II, § 8; id., art. IV, § 1), and in each instance,
accountability for a given law is clear. Advisory questions on legislative matters,
in contrast, would supposedly blur lines of accountability and hamper the ability
of voters appropriately to evaluate their representatives at the ballot box: should
they be held responsible for a particular legislative action pre-approved by the
electorate, or not?
35
As an initial matter, we note our system of government is one in which the
lines of accountability are inevitably blurred to some extent. In a representative
democracy, legislators are generally expected to be responsive to their
constituents. If a representative votes in favor of a legislative measure that tracks
the results of an advisory ballot measure, a voter may not be able to know if the
representative is voting his or her own conscience or instead is following the
views of a majority of the representative‘s constituents. But even in the absence
of an advisory measure, questions will sometimes arise as to whether a
representative‘s vote on a particular matter is based on the representative‘s
individual views or instead reflects those of his or her constituents, as embodied in
polls or other gauges of public sentiment.
Moreover, our state Constitution guarantees to the people ―the right to
instruct their representatives.‖ (Cal. Const., art. I, § 3, subd. (a).) Although this
court has not had occasion to delineate the bounds of that right, its very existence
is telling.
Instructions are a practice borrowed from England. They were employed
frequently in the colonies as a formal means for the represented to communicate
their views to representatives. (See generally Kruman, Between Authority &
Liberty, supra, at pp. 76–81; Wood, The Creation of the American Republic
1776–1787 (1998) pp. 189–190; Terranova, The Constitutional Life of Legislative
Instructions in America (2009) 84 N.Y.U. L.Rev. 1331, 1333–1339.) For
example, states delivered instructions to their delegates in connection with the
issuance of the Declaration of Independence, during the period of the Articles of
Confederation, and to guide deliberations at the 1787 Constitutional Convention.
(Kobach, May “We the People” Speak?: The Forgotten Role of Constituent
Instructions in Amending the Constitution (1999) 33 U.C. Davis L.Rev. 1, 38–58.)
Views varied as to their compulsory nature; while English legislators had
36
increasingly taken the position that instructions were precatory, some Americans
in the colonial period treated them as more binding. (Kruman, at pp. 76–77;
Terranova, at pp. 1333–1339; Kobach, at pp. 30–37.) A right to instruct
congressional representatives was proposed as an addition to the draft First
Amendment, but ultimately foundered on uncertainty over the effect to be given
instructions, among other concerns. (1 Annals of Congress, supra, at pp. 760–
776.)
Unlike the federal Constitution, the state Constitution has codified a right to
instruct since before statehood. (See Cal. Const. of 1849, art. I, § 10 [―The people
shall have the right freely to assemble together, to consult for the common good,
to instruct their representatives, and to petition the Legislature for redress of
grievances.‖].) Its incorporation into the state Constitution was accompanied by
many of the same fundamental debates seen at the federal level in connection with
the omission of the right from the First Amendment—Are representatives
independent or agents? Do they represent the constituents of their district or the
entire state/country? If a right to instruct were granted, would instructions be
binding?—but the state convention ultimately struck a balance in favor of, rather
than against, a right to instruct. (See Browne, Rep. of Debates in Convention of
Cal. on Formation of State Const., supra, at pp. 42, 294–297.)
That right clouds to some extent the attribution of responsibility for
representative actions. If instructions are given and disobeyed, no accountability
problem arises; plainly the representative has voted his or her conscience, and the
electorate may provide, if it chooses, the same response that met Edmund Burke.15
15 In 1774, Burke offered a classic commentary on the nature of
representation in a speech to the electors of Bristol, England. He denounced
binding instructions, explaining that while constituent opinions were of great
(footnote continued on next page)
37
But if the representative acts in a manner consistent with instructions, then
observers may reasonably ask whether the representative was acting according to
his or her personal choice or simply following instructions. The constitutional
right of the people to instruct their representatives thus blurs, to some degree, the
lines of accountability for representative actions.
In any event, whatever the general merits of the concern that advisory ballot
measures blur accountability, the concern is less significant in the context of a
measure such as Proposition 49 relating to federal constitutional amendment.
Responsibility for the ultimate action sought, a proposed federal amendment, lies
not with the Legislature or the people of California, but with the members of
Congress, the entity constitutionally charged with proposing amendments. To the
extent individual state legislators must be accountable for their role in steps
leading to an amendment, they may be judged for their votes on the earlier
resolution seeking a convention and on the bill placing the advisory question on
the ballot.
C. Conclusion
The federal Constitution is our nation‘s fundamental charter and the source
of its supreme law. Only supermajorities of the people‘s representatives and the
several states can alter the course it sets for our country. (See U.S. Const., art. V.)
Over the last century and more, state legislatures have seen fit to resort to the
(footnote continued from previous page)
interest, ultimately it was the representative‘s duty to act not as mere agent but as a
member of a deliberative body acting in the best interests of the whole. (Bresler,
Rediscovering the Right to Instruct Legislators (1991) 26 New Eng. L.Rev. 355,
362.) Bristol rewarded Burke‘s independence by declining to reelect him.
(Bogus, Rescuing Burke (2007) 72 Mo. L.Rev. 387, 405–408; Bresler, at p. 362.)
38
ballot box for guidance on whether to propose or ratify potential federal
constitutional amendments. This past use of advisory questions to inform the
federal constitutional process evidences a larger truth—a recognition of the
particular appropriateness of consulting the polity in the course of exercising
independent judgment with respect to such foundational matters.
That truth draws its strength from ―the animating principle of our
Constitution that the people themselves are the originating source of all the powers
of government.‖ (Arizona State Legislature v. Arizona Indep. Redistricting
Comm’n (2015) 576 U.S. ___, ___ [192 L.Ed.2d 704, 729–730, 135 S.Ct. 2652,
2671].) If that be so, there can be little complaint with a legislature, before
pursuing constitutional change, seeking to obtain from the people of the state ―the
deliberate sense of the community.‖ (The Federalist No. 71, supra, at p. 482
(Hamilton).) Moreover, the solemnity of the matter to be considered justifies
obtaining popular input through an equally solemn formal vote, rather than a mere
opinion poll or other unofficial solicitation of views. While Hamilton (and many
others) objected to binding instructions from the people, no similar constitutional
objections attach to purely advisory votes. Legislators may solicit and consider
the views of the people on fundamental matters pertaining to federal constitutional
amendments, while at the same time remaining free ultimately to act differently
after due deliberation with fellow members of their representative body. The
Legislature possesses broad discretion, when conducting an investigation under its
implied state constitutional authority, ―to select the means within reasonable
bounds.‖ (Parker v. Riley, supra, 18 Cal.2d at p. 91.) We conclude the enactment
of a statute placing an advisory question on the ballot in order to investigate
popular sentiment on a matter of federal constitutional dimension falls within that
discretion.
39
Our concurring colleague, Justice Liu, expresses concern that we, like the
Legislature, have rested authority for the advisory question here on the
investigative power rather than on the plenary lawmaking power alone. (Conc.
opn. of Liu., J., post, at pp. 35–36.) He argues that the lawmaking power and
power to enact statutes are coextensive, and resort to any other power to justify a
statute would raise doubts about the plenary nature of the lawmaking power. This
line of argument confuses the form of legislative action—statute, resolution,
something else—with the nature of the underlying power justifying the exercise of
that action—lawmaking power, investigative power, ratifying power, something
else. Though the lawmaking power may be exercised only by statute (Cal. Const.,
art. IV, § 8, subd. (b)), we have never held the converse, that every statute may be
justified only as an exercise of the lawmaking power. When California joined the
wave of states enacting statutes governing the ratifying conventions for the
Twenty-first Amendment (ante, p. 12), its actions were not authorized by its
general lawmaking powers alone, but pursuant to an implied article V power to
regulate the procedures for that one-time only event. Justice Liu likewise would
justify enactment of the statute here based not on the naked power to make laws,
but on an implied article V power, albeit while adopting an unduly restrictive
understanding of state legislative powers. Neither that explanation nor ours places
in any doubt the plenary nature of the Legislature‘s lawmaking power.
Justice Liu also expresses concern that the means of investigation selected
here is unlike the methods expressly addressed in previous cases. But novelty
alone is no basis for imposing a categorical constitutional barrier where none
otherwise exists. Here, as we have discussed, none does.
40
IV. The Nexus Between Proposition 49 and the Exercise of Powers
Related to Federal Constitutional Amendment
Having concluded the Legislature may use advisory ballot questions to
facilitate the exercise of its article V functions, we next consider whether the
specific measure before us, Proposition 49, is a reasonable exercise, not barred by
any law, of the Legislature‘s power to investigate and determine the best course of
action in connection with a potential federal constitutional amendment. Howard
Jarvis contends that because the Legislature has already submitted to Congress a
call for a national convention, no further purpose can be served by a ballot
measure. We disagree.
In evaluating the connection between Proposition 49 and the Legislature‘s
powers, we are mindful of our limited role. ― ‗It is no small matter for one branch
of the government to annul the formal exercise by another and coordinate branch
of power committed to the latter, and the courts should not and must not annul, as
contrary to the constitution, a statute passed by the Legislature, unless it can be
said of the statute that it positively and certainly is opposed to the constitution.‘ ‖
(Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 692.) ―[A]ll
intendments favor the exercise of the Legislature‘s plenary authority: ‗If 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.‘ ‖ (Id. at p. 691.) Nor, in holding
up the Legislature‘s actions to the light of the Constitution, will we inquire into
underlying motives; our review is confined to determining whether an action itself
is at odds with constitutional imperatives. (City and County of San Francisco v.
Cooper (1975) 13 Cal.3d 898, 913; County of Los Angeles v. Superior Court
(1975) 13 Cal.3d 721, 727.) If any reasonable connection between the proposed
41
ballot measure and the Legislature‘s article V-related powers is discernable, it will
suffice.16
We conclude there is a sufficient nexus between Proposition 49 and, at a
minimum, the potential exercise of every one of the Legislature‘s amendment
powers. For the legislators of a state collectively to call on Congress for a federal
amendment, or to call for a national convention, is one matter. For the people of a
state, by the millions, to vote in favor of pursuing an amendment is another. The
1892 plebiscite concerning direct election of senators yielded a resounding 93
percent to seven percent majority in favor of constitutional change. (Rossum,
California and the Seventeenth Amendment in The California Republic, supra, at
p. 84.) The Legislature rationally could believe that a decisive result in the present
day might carry more weight with members of Congress, when deciding whether
to propose or vote in favor of an amendment,17 and with other state legislatures, in
16 The dissent concedes both the Legislature‘s power to investigate and to
carry out article V functions. (Dis. opn., post, at pp. 9–12.) But the dissent
contends that, if allowed to submit an advisory question, the Legislature might use
that power to interfere with the people‘s power of initiative by submitting rival
―competing measures.‖ (Id. at p. 9.) For fear of such abuse, the dissent evidently
would impose on the Legislature the burden of showing the use of any advisory
question is indispensable to the exercise of these recognized powers. (Id. at
pp. 12–13.)
We have held that the people‘s initiative power does not extend to advisory
measures proposing constitutional change. (American Federation of Labor v. Eu,
supra, 36 Cal.3d at p. 694.) A legislative ballot measure inquiring about a federal
constitutional matter, such as we address here, would never compete or interfere
with any rival proposition that the people had the authority, under their initiative
power as construed in Eu, to place on the ballot. There is no warrant to depart
from the settled understanding that the Legislature has discretion to choose within
reasonable bounds its means of investigation, without first having to demonstrate
no alternative means exist. (See Parker v. Riley, supra, 18 Cal.2d at p. 91.)
17 Arguably, the mounting wave of convention calls and pro-amendment state
resolutions played a role in the United States Senate finally capitulating and
(footnote continued on next page)
42
their deliberations over whether to join California‘s call for a constitutional
convention,18 than the Legislature‘s call alone. Election results might also inform
the Legislature‘s decision whether to formally supplement its convention call with
a joint resolution asking Congress to propose an amendment, just as both methods
of soliciting amendment were employed in the late 19th and early 20th century in
connection with senatorial selection and in 1935 in connection with tax reform.
(Ante, pp. 14–16.) Finally, if either Congress or a national convention were to
propose an amendment, a plebiscite would inform the Legislature‘s decision on
ratification. (See Idaho Sen. J. Res. No. 101 (50th Leg., 1st Reg. Sess. 1989),
reprinted in 101 Cong. Rec. S7911 (daily ed. July 13, 1989) [ratifying the 27th
Amend. following solicitation of a popular vote].)
Moreover, even a result at the ballot box rejecting the proposal could afford
material assistance to the Legislature in determining how to exercise its article V-
related powers. Although the Legislature has already called for a constitutional
convention, ―[w]hat the Legislature has enacted, it may repeal.‖ (California
(footnote continued from previous page)
joining the House of Representatives in proposing a direct election amendment.
(See Kobach, Rethinking Article V: Term Limits and the Seventeenth and
Nineteenth Amendments (1994) 103 Yale L.J. 1971, 1976–1980.) The Legislature
could reasonably conclude the members of Congress are not immune to showings
of political and popular support for change.
18 The California Legislature‘s pending convention call is without force until
33 other legislatures join in. (See U.S. Const., art. V.) Just as Pennsylvania‘s
Legislature once coordinated a campaign to marshal the requisite number of
convention calls in support of direct election of Senators (Hall, The History and
Effect of the Seventeenth Amendment, supra, at pp. 223–225; Haynes, The
Election of Senators, supra, at pp. 122–125, 275–276; Kyvig, Explicit &
Authentic Acts, supra, at p. 210), so our Legislature may take steps directed at
persuading other legislatures in order to make its own call meaningful.
43
Redevelopment Assn. v. Matosantos, supra, 53 Cal.4th at p. 255; see Fletcher v.
Peck (1810) 10 U.S. 87, 135 (6 Cranch) [―one legislature is competent to repeal
any act which a former legislature was competent to pass‖].) Nothing in the text
of article V establishes an intent to depart from this fundamental understanding
about the nature of legislative bodies and to afford Congress and state legislatures
only the power to make, but never to withdraw, proposals. Indeed, the logic of the
amendment process the Article establishes urges strongly to the contrary.
Convention calls take effect only when a supermajority, two-thirds of the
legislatures, have joined in. A national consensus is a foundational necessity. To
allow the making of calls, but not their subsequent negation, might place Congress
under orders to call a convention when far fewer states, perhaps not even a
majority, presently favored amendment. It follows that convention calls are not
static; they can be, and as a matter of historical practice frequently have been,
rescinded. (See, e.g., Nev. Assem. Res. No. 157 (1989 Reg. Sess.), reprinted in
101 Cong. Rec. S7911 (daily ed. July 13, 1989) [rescinding convention call];
Kyvig, Explicit & Authentic Acts, supra, at p. 378 [noting N.C. and Okla.
rescissions of convention calls]; Paulsen, A General Theory of Article V: The
Constitutional Lessons of the Twenty-seventh Amendment (1993) 103 Yale L.J.
677, 765–789 [cataloguing both state-by-state convention calls and their repeals].)
The Legislature has called for a national convention; it might, upon sober and
mature reflection informed by popular disapproval at the ballot box, reconsider
and rescind as unwise that resolution.
Illustrative of the relevance an advisory vote can have even after a
legislature has acted is the case of the Massachusetts legislature‘s 1924–1925
change of heart on the question of a child labor amendment. In 1924,
Massachusetts was among those states petitioning Congress for submission of a
constitutional amendment to the states to overturn United States Supreme Court
44
decisions limiting Congress‘s regulatory power over child labor. However, when
Congress complied and proposed an amendment, the state‘s legislature did not
immediately act but instead submitted the question of ratification to a November
1924 advisory vote of the people. The plebiscite demonstrated widespread
popular opposition, with the amendment losing by more than three-to-one. Taking
those views into account, the legislature reversed its support from the year before
and declined to ratify the amendment. (Kyvig, Explicit & Authentic Acts, supra,
at pp. 259–260.) So too, an advisory vote may guide a legislature in deciding
whether to persist with efforts to obtain, or rescind a call for, a national convention
or congressionally proposed federal amendment.
Accordingly, we conclude Proposition 49 is a reasonable and lawful means
of assisting the Legislature in the discharge of its article V-related functions.
Howard Jarvis has identified no constitutional obstacle. Proposition 49‘s
placement on a statewide ballot may be upheld as an exercise of the Legislature‘s
implied power under the California Constitution to investigate and determine the
best course of action in connection with a potential federal constitutional
amendment.
45
DISPOSITION
We discharge the order to show cause, deny Howard Jarvis‘s petition for a
peremptory writ of mandate, and vacate our previously ordered stay.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
46
CONCURRING OPINION
BY CANTIL-SAKAUYE, C. J.
As the majority observes, I dissented from this court‘s August 2014 order
removing an advisory measure, designated Proposition 49, from California‘s November
2014 general election ballot. My vote was based on my conclusion that petitioners had
failed to make a sufficient showing of the invalidity of the challenged measure to warrant
removing it from the ballot.
The court‘s opinion, arrived at following full briefing, oral argument, and
extensive deliberation, concludes that the Legislature properly exercised its authority in
enacting the statute submitting that advisory measure to a vote of the statewide electorate.
The decision upholds the Legislature‘s enactment as a permissible means of investigating
policy options regarding the Legislature‘s exercise of authority under article V of the
federal Constitution concerning a possible amendment to the federal Constitution. In the
process the majority rejects the contrary arguments of petitioners. I agree with the
majority‘s conclusion that, after full consideration, the challenged measure is valid and
that petitioners‘ objections fail. Accordingly, I have signed the majority opinion.
I write separately to avoid any misunderstanding or implication that legislatively
authorized advisory ballot measures are permissible only concerning the narrow universe
of matters relating to the Legislature‘s role under article V of the federal Constitution
(sometimes, article V). As I will explain, legislative authority to pose advisory ballot
questions has long been properly employed — by our own Legislature, by the legislatures
of numerous other states, and by local legislative bodies (such as county boards of
supervisors and city councils) throughout California and the nation — to obtain the views
of the voters concerning all manner of subjects reasonably within a legislative body‘s
authority to act. Nothing in today‘s decision should be viewed as calling into question
the validity of all types of statewide and local advisory ballot measures, even those
completely unrelated to any proposed amendment to the federal Constitution.
Before addressing the legal principles and precedent supporting the Legislature‘s
general authority to submit advisory measures to a vote of the people, it is useful to
review in some detail the long-standing historical and recent practice demonstrating that
legislatively initiated advisory ballot measures have been used regularly and extensively
concerning a wide variety of subjects both within California and nationwide. This
considerable use of advisory ballot measures may not be as well known within the legal
community or among the general public as it perhaps should be, but this practice is
important to keep in mind when the question of the permissible scope of advisory ballot
measures is considered.
I. LEGISLATIVE USE OF GENERAL ADVISORY BALLOT MEASURES
IN CALIFORNIA AND NATIONWIDE, UNCONNECTED
WITH ANY ARTICLE V ROLE OR RELATED ISSUE
A. Seven prior advisory policy measures submitted to California’s statewide
electorate
As section 2, subdivision (m) of the challenged statute (Stats. 2014, ch. 175) itself
observes, ballot measures seeking the nonbinding advisory views of the voters have been
used in the past in this state. On seven prior occasions the Legislature has submitted
advisory ballot measures to the statewide voters, most of them unconnected to any effort
to amend the federal Constitution. And, like the statute currently under review, when the
Legislature‘s questions pertained to issues over which the federal government has
2
ultimate control, the measures have directed that the ballot results be conveyed to
Congress.
The first advisory ballot measure in California — an ugly reflection of its times,
asking the statewide voters whether they were ― ‗[f]or‘ ‖ or ― ‗[a]gainst‘ ‖ Chinese
immigration — was submitted to California voters by the Legislature in 1877 (Stats.
1877, ch. 5, p. 3), and appeared on the statewide general election ballot in September
1879, just a few months after the voters had approved a newly proposed state constitution
at a special election in May 1879. That advisory measure required, similarly to the one at
issue here, that the result of the balloting be conveyed to Congress. (Stats. 1877, ch. 5,
§§ 2 & 3, p. 3.)
The next two advisory ballot measures were presented to the statewide voters in
1892. One implicated the Legislature‘s article V role — it sought the electorate‘s views
concerning whether the federal Constitution should be amended (as it eventually was,
more than two decades later) to provide for direct election of United States Senators.
That advisory measure required, again similarly to the one at issue here, that the result of
the balloting be conveyed to Congress. (Stats. 1891, ch. 48, § 3, p. 46.) The second
advisory measure of that year asked whether the ability to read and write in English
should be a requirement for voting in the state. (Stats. 1891, ch. 113, pp. 704-705.)
As explained in the majority opinion (ante, at pp. 22-23), in 1909, and again in
1911 — both prior to adoption of the Seventeenth Amendment to the federal Constitution
— our Legislature, like those in numerous other states, asked voters to give their advice
at the ballot box concerning which candidate the Legislature should appoint as United
States Senator. (Stats. 1909, ch. 405, § 2, p. 691; Stats. 1911, ch. 387, § 1, pp. 705-705.)
And in 1933, the Legislature posed to the statewide electorate two advisory ballot
questions concerning the use of gasoline tax funds. (Stats. 1933, ch. 435, pp. 1125-
1126.)
3
B. Other states’ submission of advisory measures to their statewide electorates
Dating initially from the late 1700s, and with growing use in the mid 1800s, the
legislatures of other states have sought the advice of their statewide voters on all kinds of
matters unconnected with any article V issue and yet within the legislature‘s authority to
act — ranging from whether to allow the establishment of banks, to abolition of forced
labor by prisoners, to suffrage for women. (Goldman, The Advisory Referendum in
America (1950) 14 Pub. Opinion Q. 303, 305-308 [describing the use of advisory
measures in colonial times and in statewide 19th-century ballot measures in Mass., Ala.,
Wis., Nev., and N. Y.]1 (hereafter The Advisory Referendum).)
The use of such advisory and nonbinding ballot measures has continued
nationwide in the intervening decades. For example, the Massachusetts Legislature put
12 advisory measures on the ballot from 1919 to 1998, and the Wisconsin Legislature
placed 20 such measures on the ballot between 1948 and 1995. (Zimmerman, The
Referendum (2001) p. 62.)
Focusing only on the most recent four decades, advisory measures wholly
unconnected with any article V role have been placed on the statewide ballot by 12 state
legislatures, all of which operate under constitutions similar to California‘s, in that none
contains any provision specifically authorizing such legislative action. These most recent
1 The author explained: A 1797 Massachusetts advisory ballot measure concerned
whether to call a state constitutional convention; an 1819 Alabama advisory measure
concerned whether to ratify an amendment to the state constitution; an 1847 Wisconsin
measure concerned whether to allow or prohibit banks in the state; an 1879 Nevada
measure, like the similar California ballot measure mentioned above, concerned whether
to ban Chinese immigration; an 1883 New York measure concerned whether to abolish
forced labor by prisoners; and another Massachusetts advisory ballot measure in 1895
concerned suffrage for women. (The Advisory Referendum, supra, 14 Pub. Opinion Q.
at pp. 306-308.)
4
examples of statewide ballot measures have posed to the statewide voters the following
policy questions addressing myriad issues coming within the legislature‘s authority to act.
Alaska: Should the legislature propose an amendment to the state constitution
prohibiting the state from providing employment benefits to same-sex partners of public
workers? Should a portion of the Alaska Permanent Fund be used to balance the state
budget? Should the legislature revise the state‘s annuity program by adopting a longevity
bonus for those 65 and older? Should the Legislature adopt a resolution placing before
the voters an amendment to the state constitution calling for regular legislative sessions to
be 120 days long with the possibility of a 10-day extension upon a majority vote?2
Delaware: Do the voters favor allowing the state to license various charitable
organizations to sponsor and conduct lotteries under certain conditions? Do the voters
favor state regulated and controlled slot machines?3
Idaho: In light of the fact that the United States Supreme Court ruled that the
state‘s term limits law does not apply to members of Congress, should that law continue
to apply to state elective offices? Should the state maintain previously adopted property
2 Advisory election (Apr. 3, 2007) on benefits for same-sex partners of public
employees (2006 Alaska Sess. Laws, ch. 1, 4th Special Sess.): voters answered no,
according to data presented on ballotpedia.com (results of statewide elections described
below and through fn. 23 are from the same source or from reports maintained by the
particular state); advisory election (Sept. 14, 1999) on permanent fund (1999 Alaska
Sess. Laws, ch.1, 1st Special Sess.): voters answered no; advisory vote on longevity
annuity option, general election ballot (Nov. 4, 1986), Measure No. 3: voters answered
yes (Inter-university Consortium for Political and Social Research, Referenda and
Primary Election Materials (1994) pt. 49, p. 64); advisory vote on legislative session
length, general election ballot (Nov. 7, 1978), Proposition No. 1 (1978 Alaska Sess.
Laws, ch. 98, Sess. Law No. 78, 2d Sess.): voters answered yes.
3 Advisory referendum (Nov. 6, 1984, election) on lotteries by charitable
organizations (64 Del. Laws, ch. 414, p. 955): voters of the four targeted counties
answered yes; advisory referendum (Nov. 2, 1976, election) on slot machines (60 Del.
Laws, ch. 390, p. 1138): voters of the three targeted counties answered no.
5
tax relief, reducing property taxes and protecting funding for public schools, by keeping
the sales tax at 6 percent?4
Illinois: Should any health insurance plan that provides prescription drug
coverage be required to include prescription birth control as part of that coverage?
Should the state increase its minimum wage to $10 per hour by a certain date? Should
the state constitution be amended to require that each school district receive additional
revenue, based on its number of students, from an additional 3 percent tax on income
greater than $1 million?5
Massachusetts: Should taxpayer money be used to fund political campaigns for
public office? Should the commonwealth require that radio and TV broadcast outlets
give free equal time to all candidates running for public office? Should the
commonwealth change the legal age for consuming alcohol from 21 to 18? Should
voluntary recitation of prayer be authorized in the commonwealth‘s public schools?6
4 Advisory ballot (Nov. 3, 1998, election) on whether to retain state term limits
(submitted by 1998 Idaho Sess. Laws, ch. 255, p. 824): the voters answered yes;
advisory ballot (Nov. 6, 2006, election) on retaining the property tax (submitted by 2006
Idaho Sess. Laws, ch. 1, § 25, p. 36): the voters answered yes.
5 The ―Women‘s Health Referendum Act‖ required a statewide advisory public
question (Nov. 4, 2014, election) on birth control in prescription drug coverage (2014 Ill.
Laws, Pub. Act 98-696, 98th Gen. Assem.): the voters answered yes; the ―Minimum
Wage Increase Referendum Act‖ submitted an advisory public question on the same
ballot (Nov. 4, 2014, election) (2014 Ill. Laws, Pub. Act 98-657, 98th Gen. Assem.): the
voters answered yes; the ―Tax for Education Referendum Act‖ submitted another
statewide advisory public question (Nov. 4, 2014, election) concerning tax on income
over $1 million (2014 Ill. Laws, Pub. Act 98-794, 98th Gen. Assem.): the voters
answered yes.
6 Legislative advisory question on taxpayer funding for political campaigns (Nov. 5,
2002, election), Question No. 3 (2002 Mass. Acts, ch. 184, § 174(c), p. 660): the voters
answered no; legislative advisory question on television and radio time for candidates
(Nov. 6, 1990, election), Question No. 6 (1989 Mass. Acts, ch. 428, p. 732): the voters
answered yes; legislative advisory question on lower drinking age (Nov. 7, 1972,
(footnote continued on next page)
6
Nevada: Should the state designate the third to last Friday in October as a new
Nevada Day holiday, replacing a holiday long declared by the Legislature to fall on
October 31?7
Oregon: Should the state change the system for funding public schools in various
ways specified in a menu of options, concerning income, property, and sales taxes,
presented in four separate advisory measures?8
Vermont: Should the legislature consider enactment of a lottery to supplement
state revenues? Should the state hold a constitutional convention?9
Wisconsin: Should the death penalty be enacted in the state for cases involving
first-degree intentional homicide if the conviction is supported by DNA evidence? Do
the voters favor restrictions on gambling, or new forms of gambling, or continuation of
existing forms of gambling, as described in five separate advisory measures? Should
local control over vocational, technical and adult education be changed to state control,
(footnote continued from previous page)
election), Question No. 8 (1972 Mass. Acts, ch. 155, p. 74): the voters answered yes;
legislative advisory question on prayer in schools (Nov. 7, 1972, election), Question No.
9 (1972 Mass. Acts, ch. 607, p. 479): the voters answered yes.
7 Nevada Day advisory question (Nov. 3, 1998, election), Question 4 (1997 Nevada
Stat., ch. 202, p. 508): the voters answered yes.
8 Modification of school finance system, advisory ballot measure, Measure No. 5A
(May 15, 1990, statewide ballot). This and four companion advisory measures, Nos. 5B
through 5E, were authorized by 1989 Oregon Laws, chapter 1086, section 2, page 2214,
and were presented on the ballot as a menu of options. The voters answered yes, they
wanted to change the current system for funding K-12 schools, but they advised against
each of the four proposed options for doing so.
9 State lottery question (Nov. 2, 1976, election) (1976 Vt. Acts, No. 252, p. 372):
the voters answered yes; constitutional convention question (June 3, 1969, election)
(1969 Vt. Acts, No. 74, p. 202): the voters answered no.
7
with funding paid out of state tax revenues, instead of principally from local property tax
revenues? Do the voters favor greater state aid to municipalities for accelerated water
pollution abatement facilities through the issuance of bonds? Do the voters favor
expanding state acquisition and development of land for recreational purposes through
the issuance of bonds?10
Less frequently during the same most recent four decades, legislatures nationwide
also have continued to exercise their traditional powers by seeking the advisory views of
the electorate concerning, not a possible law or state constitutional amendment, but
10 Death penalty advisory (Nov. 7, 2006, election) Question No. 1 (2005 Sess. Laws,
p. 1807; Wis. Sen. Joint Res. No. 5): the voters answered yes. Regarding the gambling
measures (1991 Wis. Sess. Laws, p. 1783), all were submitted to state voters on the April
6, 1993, statewide ballot, as Questions 1 through 5. Question 1, concerning gambling
casinos on excursion vessels, asked, ―Do you favor a law that would allow gambling
casinos on excursion vessels operating in this state on the Mississippi River, Lake
Michigan and Lake Superior?‖ (the voters answered no); Question 2, concerning
restriction of gambling casinos, asked, ―Do you favor a constitutional amendment that
would restrict gambling casinos in this state?‖ (the voters answered yes); Question 3,
concerning video poker and video gambling, asked, ―Do you favor a law that would
allow video poker and other forms of video gambling in this state?‖ (the voters answered
no); Question 4, concerning pari-mutuel on-track betting, asked, ―Do you favor
continuing to allow pari-mutuel on-track betting on races in this state, such as horse, dog
and snowmobile races?‖ (the voters answered yes); and Question 5, concerning the state-
operated lottery, asked, ―Do you favor continuing to allow the state-operated lottery?‖
(the voters answered yes).
The other Wisconsin referenda mentioned in the text above were posed at the
April 1, 1969, election: to the question of state control and funding of vocational
education (1969 Wis. Sess. Laws, p. 1518), the voters answered no; to the question of
water pollution control bonds (1969 Wis. Sess. Laws, p. 1518), the voters answered yes;
to the recreational lands question (1969 Wis. Sess. Laws, p. 1518) the voters answered
yes.
Advisory ballot policy measures have also been employed internationally. (See
DuVivier, The United States as a Democratic Ideal? International Lessons in
Referendum Democracy (2006) 79 Temple L.Rev. 821, 847 [describing use in New
Zealand, Denmark, Finland, Italy, Norway, Sweden, and the U.K.].)
8
instead connected with the legislature‘s authority to issue policy resolutions directed
toward the federal government.
For example, federal environmental issues have been the subject of advisory
questions in at least four states. The North Carolina Legislature asked voters if they were
―for‖ or ―against‖ location of a radioactive waste facility in the state, and directed that the
results of the ballot be shared with the President, Congress, and other federal officials.
Likewise, the Oregon Legislature asked: Should state officials continue challenges to
federal selection of the state to house high-level nuclear waste repositories? The
Wisconsin Legislature asked: Do voters support construction of a national or regional
high-level radioactive waste disposal site in the state? The Massachusetts Legislature
asked: ―Shall the Commonwealth urge the President . . . and . . . Congress to enact a
national acid rain program‖ requiring specific reductions in total national sulfur dioxide
and allocate the costs of reductions equitably among the states?11
Concerning the federal government‘s military policies, the legislature of
Massachusetts in 1970 polled its voters regarding ―the future course of action by the
United States in Vietnam,‖ asking whether military victory, withdrawal pursuant to a
―planned schedule,‖ or immediate withdrawal was preferable.12 Thereafter, in 1982 the
11 Regarding the radioactive waste disposal referendum (May 6, 1986, election) (1986
N.C. Sess. Laws, ch. 1, p. 1, Ex. Sess.), North Carolina voters answered ―against‖;
concerning continuing challenges to federal selection for nuclear waste repositories (May
19, 1987, election), Measure 1 (1987 Or. Laws, ch. 13, § 5, p. 17), Oregon voters
answered yes; concerning the radioactive waste site question (Apr. 5, 1983, election)
(1983 Wis. Sess. Laws, p. 881), Wisconsin voters answered no; concerning the national
acid rain program question (Nov. 4, 1986, election) Question 8 (1986 Mass. Acts, ch.
167, p. 205), Massachusetts voters answered yes.
12 Regarding the war in Vietnam (Nov. 3, 1970, election), Question No. 5 (1970
Mass. Acts, ch. 588, p. 437), Massachusetts voters selected the middle option —
withdrawal pursuant to a ―planned schedule.‖
9
legislatures of three states — New Jersey, Rhode Island, and Wisconsin — asked their
voters whether the state should inform the President and Congress that the people desired
a negotiated international nuclear weapons moratorium and arms reduction.13
Regarding the federal government‘s role in legislating concerning health care, the
Massachusetts and New Jersey Legislatures each asked voters: Should the state urge
Congress to enact a national health care program?14
C. Nationwide and in California: Advisory measures submitted to voters by local
legislatures (county boards and city councils)
Nationwide, the use of legislative advisory ballot measures to ask voters similar
policy questions is even more frequent at the level of local legislatures — county boards
of supervisors and city councils. (See <http://ballotpedia.org/Advisory_question> [as of
January 4, 2016] [―Advisory questions are most commonly used at the local level, often
to voice the opinions of [the] region to higher levels of government‖].) Cities have made
use of such advisory measures since the late 19th and early 20th centuries. (See, e.g.,
Zimmerman, The Referendum, supra, at p. 140 [describing such measures in New York
City, Buffalo, Chicago, and Wilmington]; Crouch, Municipal Affairs: The Initiative and
13 Freeze of nuclear arms escalation (Nov. 2, 1982, election), Public Question No. 1
(1982 N.J. Laws, ch. 35, pp. 79-81): New Jersey voters answered yes; referendum
regarding nuclear armaments (Nov. 2, 1982, election) (1982 R.I. Pub. Laws, ch. 317, p.
1415): Rhode Island voters answered yes; referendum on nuclear weapons moratorium
and reduction (Sept. 14, 1982, election) Question No. 1 (1981 Wis. Sess. Laws, p.
1710): Wisconsin voters answered yes. At least one other state legislature placed a
similar measure on the statewide ballot via the state‘s indirect initiative procedures: on
the nuclear arms freeze initiative, Initiative No. 3 (Nov. 6, 1984, election) (1984 S.D.
Sess. Laws, ch. 236, p. 422), South Dakota voters answered no.
14 Regarding the Massachusetts legislative advisory question on national health care,
Question No. 7 (Nov. 4, 1986, election) (1985 Mass. Acts, ch. 324, p. 568), voters
answered yes; concerning New Jersey‘s national health care referendum, Question No. 2
(Nov. 5, 1991, election) (1991 N.J. Laws, ch. 160, p. 802), voters answered yes.
10
Referendum in Cities (1943) 37 Amer. Poli. Sci. Rev. 491, 492, 501 [observing that
―[m]any city councils have made use of . . . the advisory referendum, or ‗straw vote‘ ‖
advisory ballot, and noting that between 1910 and 1938, 32 such measures were
submitted to the voters in Detroit] [hereafter Referendum in Cities].)
Local legislatively initiated advisory ballot measures in California reflect a similar
pattern. Prior to 1940, and even though there was at that time no explicit constitutional or
statutory authority for doing so, advisory policy measures often appeared on the ballot in
Los Angeles and San Francisco. (See Referendum in Cities, supra, 37 Amer. Poli. Sci.
Rev. at pp. 492, 501 [noting 46 ―[p]ublic [p]olicy [r]eferenda‖ on the L.A. ballot, and 21
on the S.F. ballot].) Eventually, in 1976, the Legislature specifically codified and
acknowledged the propriety of advisory measures placed on the ballot by local legislative
entities, including county boards of supervisors and city councils. Elections Code section
9603, subdivision (a), expressly contemplates advisory measures to allow ―voters within
the jurisdiction, or a portion thereof, to voice their opinions on substantive issues, or to
indicate to the local legislative body approval or disapproval of the ballot proposal.‖
Counted from 1995, the most recent year for which data is readily available, there have
been, in California alone, 184 such measures — mostly by cities, with others by counties
— averaging more than nine statewide each year.
What has been the nature of these local advisory measures? They have mirrored
the types of statewide policy inquiries described above, with a special focus on specific
issues of local importance and within the local legislature‘s authority to act. Typical have
been, for example, questions concerning the conduct of local elections. The City of
Modesto has asked its voters: Should city council members be elected by district, or at
large? The City of Davis has asked: Should city council elections be conducted pursuant
to ―choice voting‖ (also known as ―instant runoff‖ or ―preference‖ voting)? The City of
11
Lancaster has asked: Should the city adopt an ordinance consolidating municipal
elections with countywide school district elections?15
Other measures have probed the voters‘ policy preferences concerning a variety of
miscellaneous local matters. The City of Milpitas has asked: Should the city council
submit to the voters a proposal to revise the city charter in various ways, including
enlarging the city council? The City of National City has asked: Should the city council
establish a Citizens‘ Police Oversight Commission? The City of South Gate has asked:
Should the city council enact a permit system regulating the number of vehicles that may
be parked overnight? The City of Half Moon Bay has asked: Should the city adopt a
policy of employing its powers of eminent domain only when the stated ―public use‖ is
not ―primarily . . . based on the City‘s desire for ‗increased City revenue‘ ‖?16
15 The California Elections Data Archive (CEDA) is a compilation of candidate and
ballot results for all local California elections, prepared as a joint project of the Center for
California Studies and the Institute for Social Research, California State University,
Sacramento, and the Secretary of State (<http:// www.csus.edu/isr/reports/california
_elections> [as of January 4, 2016]; <http:// www.sos.ca.gov/elections/county-city-
school-district-ballot-measure-election-results> [as of January 4, 2016]). For text and
results of local measures listed through footnote 23, reference will be made to the
relevant year‘s CEDA compilation, by city or county results.
City of Modesto, Measure J (Nov. 6, 2007, election): voters answered ―by
district‖ (2007 CEDA, city results, p. 23); City of Davis, Measure L (Nov. 7, 2006,
election): voters answered yes (2006 CEDA, city results, p. 38); City of Lancaster,
Measures A and B (Apr. 8, 2008, election): voters answered yes (2008 CEDA, city
results, p. 26).
Likewise, other cities and counties have addressed local election rules: Should the
city council call an election for the voters to decide whether the office of mayor should be
elective, rather than appointed by the city council? (City of Moreno Valley, Measure O
(Nov. 2, 2010, election): voters answered yes (2010 CEDA, city results, p. 31).) Should
mailed ballots be used for all future general district elections? (San Bernardino County,
Measure 1 (Aug. 30, 2011, election): voters answered yes (2011 CEDA, county results,
p. 14).)
16 City of Milpitas, Measure I (June 6, 2006, election): voters answered no (2006
CEDA, city results, p. 35) (the measure asked: ―Should the Milpitas City Council place
(footnote continued on next page)
12
Many other advisory measures have addressed housing, development, and related
public service issues. For example, the City of San Diego has asked: Do the voters
endorse development of up to 5,000 low-rent apartments and townhomes scattered
throughout the city? The City of Modesto has asked: Should the city council expand
sewer service to certain areas? Los Angeles County has asked: Should a new flood
control district be formed, or should an existing area be annexed to a current county flood
control district?17
(footnote continued from previous page)
before the voters a charter city proposal that would require the following: (1) a budget
reserve only for emergencies and not salaries, (2) voter approval of future capital projects
over $15 million, (3) increase City Council from five to seven members, (4) an open
recruitment process for top city management, (5) scheduled performance audits for all
city departments, and (6) voter approval for city charter amendments?‖); City of National
City, Measure L (Nov. 5, 2002, election): voters answered yes (2002 CEDA, city results,
p. 36); City of South Gate, Measure P (Apr. 5, 2005, election): voters answered no (2005
CEDA, city results, p. 20); City of Half Moon Bay, Measure O (Nov. 8, 2005, election):
the voters answered yes (2005 CEDA, city results, p. 23).
Other representative local matters addressed questions such as: Should city
council members‘ compensation be increased 5 percent? (City of Burbank, Measure 1
(Apr. 10, 2001, election): voters answered yes (2001 CEDA, city results, p. 16).) Should
the city replace its employees‘ existing defined-benefit retirement plan with a defined-
contribution plan? (City of Pacific Grove, Measure Y (Nov. 4, 2008, election): voters
answered yes (2008 CEDA, city results, p. 30).)
17 City of San Diego, Measure A (Nov. 5, 2002, election): the voters answered yes
(2002 CEDA, city results, p. 36); City of Modesto, Measures N and O (Nov. 6, 2001,
election): the voters answered yes (2001 CEDA, city results, p. 20); Los Angeles
County, Measures J and K (Nov. 8, 2005, election): the voters answered no (2005
CEDA, county results, pp. 15-16).
Other similar measures have addressed the following questions: Should existing
separate fire and police department buildings be consolidated into a single new building?
(City of Sausalito, Measure B (Mar. 5, 2002, election): the voters answered no (2002
CEDA, city results, p. 28).) Should certain areas of the county remain official
unincorporated communities, or should they be incorporated into a separate city? (L.A.
County, Measures A & B (Nov. 3, 2009, election): voters answered yes to the first and
no to the second (2009 CEDA, county results, p. 14).) Should the city council adopt an
(footnote continued on next page)
13
Numerous local advisory measures have inquired about specific land-related
developments. For example, Siskiyou County has asked: Should certain river dams and
associated hydroelectric facilities be removed? Imperial County has asked: Should the
county create a new regional international airport to replace or augment the services
provided by the county‘s existing international airport? The City of Hawthorn has asked:
Should certain public lands be sold to generate general or earmarked revenue? 18 Still
others have asked about gaming and related issues. For example, the City of Calexico
has asked: Should a local ordinance give a city authority to negotiate agreements with
(footnote continued from previous page)
ordinance requiring removal of landscaping in order to restore and maintain primary
views from private homes? (City of Malibu, Measure E (Apr. 8, 2008, election): voters
answered yes (2008 CEDA, city results, p. 26).) Prior to transfer of ownership of a toxic
Superfund site, should the county demand the Department of the Navy meet certain
conditions, including thorough study, funding for remediation costs, identification of
funds to reimburse the community for any contamination, and actual completion of site
cleanup? (Orange County, Measure B (Nov. 5, 2002, election): voters answered yes
(2002 CEDA, county results, p. 18).) If the water district implements fluoridation for
some local users, should the prorated costs be passed on to those who receive the treated
water? (Humboldt County, Measure B (Feb. 5, 2008, election): voters answered no
(2008 CEDA, county results, p. 15).)
18 Siskiyou County, Measure G (Nov. 2, 2010, election): voters answered no (2010
CEDA, county results, p. 19); Imperial County, Measure P (Nov. 8, 2005, election):
voters answered yes (2005 CEDA, county results, p. 15); City of Hawthorne, Measure A
(Nov. 11, 2001, election): voters answered no (2001 CEDA, city results, p. 16) (the
measure asked whether voters would support sale of local airport property to fund
improvements to educational, police and fire programs, and to create new jobs).
Likewise, when the City of San Juan Capistrano‘s Measure DD (Nov. 5, 2002, election)
asked voters whether they would support sale of more than 13 acres of city land to a
private entity, they answered no (2002 CEDA, city results, p. 32).
14
Native American tribes concerning development and operation of gaming and
entertainment resorts?19
Local voters have been questioned about their policy views concerning
prioritization of existing taxes and related revenues. For example, the City of Plymouth
has asked: Should 2 percent of revenue from the increase in the transient occupancy tax
be used to fund streets, parking, and landscaping, and should another 2 percent of that
revenue fund events, signs and advertising for tourism promotion? Kings County has
asked: Should revenue from new voter-approved sales taxes be used for specified local
criminal-justice system improvements? Tehama County has asked: Should tax proceeds
funding police and fire services be distributed to the county and incorporated cities in
proportion to their respective populations?20
19 City of Calexico, Measure N (June 7, 2005, election): voters answered yes (2005
CEDA, city results, p. 17). Numerous similar subsequent local advisory measures have
produced the opposite advice by voters. Regarding Yuba County‘s Measure G (Nov. 8,
2005, election), voters answered no (2005 CEDA, county results, p. 18); concerning
Glenn County‘s Measure F (June 6, 2006, election), voters answered no (2006 CEDA,
county results, p. 15); concerning the City of Richmond‘s Measure U (Nov. 2, 2010,
election), voters answered no (2010 CEDA, city results, p. 23); see also Colusa County,
Measure D (June 6, 2006, election): voters agreed that the county should oppose local
off-reservation Indian casinos (2006 CEDA, county results, p. 15); City of Petaluma,
Measure H (Nov. 7, 2006, election): voters agreed that the city council should ―take all
lawful steps‖ to oppose gaming on specific local lands (2006 CEDA, city results, p. 37).
20 City of Plymouth, Measure S (Nov. 6, 2012, election): voters answered yes (2012
CEDA, city results, p. 21); see also City of Plymouth, Measure P (Nov. 2, 2010,
election): to the same question posed earlier, the voters also answered yes (2010 CEDA,
city results, p. 22); Kings County, Measure A (Mar. 6, 2001, election): voters answered
yes (2001 CEDA, county results, p. 14); Tehama County, Measure A (Nov. 11, 2004,
election): voters answered no (2004 CEDA, county results, p. 25). Similarly, the City of
West Sacramento has asked: Should funding priority be given to building a new library,
police facility, improving streets, public building access, after school programs,
maintaining adequate reserves? (Measure J (Nov. 5, 2002, election): voters answered
yes (2002 CEDA, city results, p. 41).)
15
Likewise, some advisory ballot questions have accompanied substantive measures
proposing to raise sales and related taxes. The City of Richmond has asked: If a business
license fee on sugar-sweetened beverages passes, should revenues be used primarily to
fund after-school sports programs, sports fields, healthier school meals, as well as
medical and obesity care for indigent children? The City of South Pasadena has asked:
If proposed local tax increases are approved, should at least 65 percent of the generated
revenue be used for infrastructure improvements, and no more than 35 percent expended
for city employee salaries?21 The City of Arroyo Grande, noting that an ordinance
21 City of Richmond, Measure O (Nov. 6, 2012, election): voters answered yes
(2012 CEDA, city results, p. 22); accord, City of El Monte, Measure C (Nov. 6, 2012,
election): asked whether, if a business license fee on sugar-sweetened beverages passed,
revenues should be used primarily for police and emergency services, as well as parks
and recreation, and projects to treat childhood obesity, voters answered yes (2012 CEDA,
city results, p. 25); City of South Pasadena, Measure AV (Nov. 6, 2007, election): voters
answered yes (2007 CEDA, city results, p. 19).
Similar combined measures have asked: If voters approve a proposed measure
increasing taxes, should those proceeds be used to fund only police and anti-gang
operations, including drug resistance education and supervised after-school youth
activities? (City of San Bernardino, Measure YY (Nov. 7, 2006, election): voters
answered yes (2006 CEDA, city results, p. 32).) If voters approve a one-half cent sales
tax increase, should half of the new revenues be spent ―to restore services to the poor that
have been cut due to State takeaways‖ and the other half on school programs ―to restore
educational services . . . eliminated due to State takeaways‖? (City of Richmond,
Measure C (June 7, 2011, election): voters answered yes (2011 CEDA, city results, p.
16).) If a sales tax measure is extended, should the proceeds fund a streetcar system and
flood protection improvements? (City of West Sacramento, Measure U (Nov. 4, 2008,
election): voters answered yes (2008 CEDA, city results, p. 39).) If voters were to
approve a sales tax increase, should the additional revenues be used primarily for
maintaining the city‘s roadways? (City of El Paso de Robles, Measure F-12 (Nov. 6,
2012, election): the voters answered yes (2012 CEDA city results, p. 33).) If voters were
to approve a half-cent sales tax increase, should the proceeds fund street repair, parks,
libraries, after school programs, child and senior facilities, police and fire services, and
reduction of utility and property tax assessments? (City of Whittier, Measure V (Nov. 5,
2002, election): voters answered yes (2002 CEDA, city results, p. 28).) If voters
approved a utility tax increase from 10 to 12 percent, should that increased revenue fund
(footnote continued on next page)
16
measure imposing a one-half cent sales tax to fund community needs was before the
voters, presented a menu of options, asking in separate measures whether a portion of
increased funds should go to (a) upgrading a specific highway interchange? (b) specific
city infrastructure maintenance needs? (c) police and fire services? (d) improvements to
make city facilities more accessible to those with disabilities?22
Finally, a few advisory ballot measures have concerned, not local policy issues,
but instead — and analogously to the advisory measures underlying legislative
resolutions described earlier — entreaties to the President and Congress regarding federal
military policy.23
With this overview in mind, I turn to the question whether, as a general matter, the
Legislature has authority to place an advisory measure on the statewide ballot.
II. THE LEGISLATURE’S GENERAL RIGHT TO INFORM ITSELF IN
ORDER TO CONSIDER WHETHER TO UNDERTAKE ACTION
As the foregoing discussion demonstrates, over numerous decades legislative
bodies have submitted advisory ballot measures to the voters in California and throughout
the country. If such measures were constitutionally impermissible, one would have
(footnote continued from previous page)
―public safety services, including paramedic programs‖? (City of Sierra Madre, Measure
12-2 (Apr. 10, 2012, election): voters answered yes (2012 CEDA, city results, p. 24).)
22 City of Arroyo Grande, Measures K-06, L-06, M-06, N-06 (Nov. 7, 2006,
election): voters answered yes to the first three, no to the last (2006 CEDA, city results,
p. 33).
23 See Mendocino County Measure Y (Nov. 7, 2006, election), asking if voters
supported ending military occupation in Iraq (2006 CEDA, county results, p. 17 [voters
answered yes]); San Francisco City and County, Measure N (Nov. 2, 2004, election),
asking a similar question — ―shall it be city policy to urge the United States government
to withdraw all troops from Iraq?‖ (2004 CEDA, county results, p. 22 [voters answered
yes]).
17
thought that objections would have been raised on numerous occasions throughout the
last century and that we would find judicial decisions striking down such measures. But
the parties have pointed to no such decision and independent research has uncovered
none. Instead, the validity of such legislatively instigated advisory ballot measures has
apparently been so well accepted that judicial challenges to such measures have been
very rare and, as explained below, the few that have been filed have been rejected.
A. Prior actions and assumptions by the drafters of the 1879 Constitution and the
voters who adopted it; early court decisions addressing challenges to advisory
ballot measures; and scholarly commentary concerning the propriety of
advisory measures
As an initial matter, it is important to recognize that the drafters of the 1879
Constitution — the version of the charter that, as revised in 1966, remains operative
today — assumed that under it, the Legislature had power to place an advisory measure
upon the statewide ballot in order to acquire the official views of the electorate on a
question of policy that was completely unrelated to any effort to amend the federal
charter. Moreover, it is clear that the electorate that approved the charter assumed that
the Legislature had authority to present such a measure for the people‘s vote.
As observed ante, part I.A., by statute in 1877 the Legislature placed an advisory
measure on the September 1879 general election ballot, asking the voters whether they
were ― ‗[f]or‘ ‖ or ― ‗[a]gainst‘ ‖ Chinese immigration. In the interim, a state
constitutional convention had been called and was held in the closing months of 1878 and
early 1879 (1 Willis & Stockton, Debates and Proceedings, Cal. Const. Convention 1878-
1879 (Willis and Stockton)), at which the subject of Chinese immigration was a major
focus. During the course of those debates the delegates, essentially all of whom
expressed virulent and racist views on the issue (see, e.g., 1 Willis & Stockton, at
pp. 627- 640; 2 Willis & Stockton, at pp. 641-662, 663-692, 695-702), explicitly
discussed the impending advisory ballot measure. The existence and assumed propriety
18
of that impending measure was instrumental in derailing a proposed constitutional
provision expressly barring such immigration; the delegates instead were content to let
the electorate speak on the issue via the upcoming advisory ballot measure.24
Accordingly, when the Legislature‘s advisory measure was finally presented to and acted
upon by the voters in September 1879, just a few months after they had approved the new
Constitution itself in May of that same year, the electorate voted on that advisory
measure with the blessing of the constitutional delegates, who obviously assumed that the
Legislature possessed and retained authority to submit such an advisory measure to the
statewide voters. Nor is there any reason to believe that the electorate, having voted their
approval of the new charter only months earlier, had any basis to suspect that under it, the
Legislature lacked authority to have the people vote on that September 1879 advisory
ballot measure.25
The few early lawsuits challenging advisory measures were rebuffed. As
mentioned earlier, in both 1909 and 1911 our Legislature, like those in numerous other
24 This movement was led by Mr. Rolfe, who argued against including the proposed
immigration provision in the charter, proposing instead deference to the impending
advisory vote: ―[T]he last Legislature passed an Act submitting the question to the
qualified voters of this State, to vote whether they are in favor or against Chinese
immigration. Any gentleman may turn to the statutes and find it. They are called upon to
vote for or against Chinese immigration. And upon the result of that the Governor and
Secretary of State are to memorialize the President of the United States as to what that
decision may be.‖ (2 Willis & Stockton, supra, at p. 703, col. 1.) Ultimately, the
delegates agreed with Mr. Rolfe, narrowly passing a motion to strike the express
provision barring immigration. (Id., at p. 704, col. 1 [noting that the vote was 54 to 51 to
strike]; see, e.g., 3 Willis & Stockton, at pp. 1493 [the article as reported by the
committee on revision and adjustment] & 1519 [as finally adopted].)
25 The statewide voters, in line with the views of the convention delegates,
overwhelmingly answered that they were ―against‖ Chinese immigration. (See
<http://digitalhistory.hsp.org/pafrm/doc/certificate-vote-act-ascertain-and-express-will-
people-state-california-subject-chinese> [as of January 4, 2016].)
19
states, again posed advisory measures to the electorate, seeking its advice concerning
which candidate the Legislature ― at that time possessing the power to appoint the
state‘s United States Senators — should appoint to that position. (Stats. 1909, ch. 405,
§ 2, p. 691; Stats. 1911, ch. 387, § 1, pp. 705-705.) As the majority opinion observes,
when the 1909 enactment placing this question on the 1909 primary election ballot was
challenged as violating the Constitution‘s ―one subject‖ rule in Socialist Party v. Uhl
(1909) 155 Cal. 776, we upheld the statute, and commented: ―There is nothing in the
constitution . . . which prohibits the legislature from providing at a primary [election] for
an expression of a choice as to a candidate for United States senator. It is within the
general legislative power to do so . . . .‖ (Id., at p. 782.)
The South Dakota Supreme Court had reached a consistent conclusion 14 years
previously in State ex rel. Cranmer v. Thorson (S.D. 1896) 68 N.W. 202 (Cranmer),
upholding the validity of a legislative advisory ballot measure outside the article V
context. The South Dakota Legislature sought to pose a question to its statewide voters
concerning whether a provision of the state charter, establishing Prohibition within the
state, should be repealed. (Cranmer, at p. 202, citing 1895 S.D. Sess. Laws, ch. 38,
p. 39.) A prospective voter, arguing that the ballot measure as phrased was not itself a
proposed amendment, but instead a mere question seeking the electorate‘s nonbinding
policy views about a possible future amendment, sought — similarly to petitioners in the
present case — to enjoin the defendant secretary of state from placing such an advisory
measure on the ballot. The state supreme court rejected that challenge, explaining that
even if the measure sought merely the voters‘ advice and not their actual determination of
the ultimate issue, the court was aware of ―no law prohibiting the legislature from
submitting any question its wisdom may suggest.‖ (68 N.W. at p. 202, italics added.)
Regarding the challenger‘s contention that the measure, as phrased, posed only a policy
query to the voters, and that ―the constitution will not be changed whatever reply may be
returned‖ (ibid.), the court stated that the legislature was perfectly free to ―submit a
20
question not intended to change the organic law‖ (ibid.), and concluded that the
legislature ―has done what it had a right to do.‖ (Id., at p. 203.) To determine otherwise
and take the matter off the ballot, the court wrote, ―would disturb the system of checks
and balances which the constitution has so carefully constructed.‖ (Id., at p. 204; see also
Wyatt v. Kundert (S.D. 1985) 375 N.W.2d 186, 191 [acknowledging the legislature‘s
power to pose advisory ―questions to a vote of the electors‖ on the statewide ballot];26
accord, Southeastern Mich. Fair Budget Coalition v. Killeen (Mich.Ct.App. 1986) 395
N.W.2d 325, 330 [―the Legislature can do anything which it is not prohibited from
doing‖ and may ―place advisory questions on the ballot and . . . empower subordinate
governmental entities to do so‖ as well].)
Scholars have long reached the same conclusion. More than 100 years ago, after
describing some of the advisory policy measures mentioned above, Ellis Paxson
Oberholtzer observed: ―There is nothing, it would seem, that could prevent the
legislature from resolving to ask the people for advice‖ by posing questions on the
statewide ballot. (Oberholtzer, The Referendum in America (1911) p. 208 (hereafter The
26 The court in Wyatt proceeded to find that the measure before it was in fact a form
of referendum — a ―legislative act[]‖ that would be effective only upon approval by the
statewide voters — rather than a mere advisory ballot question. (Wyatt v. Kundert, supra,
375 N.W.2d at pp. 191-192.) See also Wagner v. Summers (S.D. 1913) 144 N.W. 730, in
which the South Dakota Supreme Court upheld a statute specifying that acts of local
legislatures (except time-sensitive matters affecting public safety) — including those
legislative acts that did not make law but, as in that case, merely granted a permit by
resolution — were subject to the electorate‘s veto review by referendum at the ballot. In
reaching this conclusion the court stressed that the legislature enjoyed power ―except as it
is limited by the state Constitution and federal Constitution‖ and that all presumptions
favored upholding legislation (id., at p. 732). The court rejected an argument that the
justices should set ―some limit to the character of the acts which may be referred to the
electors,‖ and held instead that “the Legislature in its wisdom must be left to prescribe
what acts . . . may be referred [to the voters at the ballot], and that courts are without
authority to declare limitations where none are prescribed by the Legislature.‖ (Id., at
p. 733, italics added.)
21
Referendum in America); see Lowell, The Referendum in the United States, in The
Initiative, Referendum and Recall (Munro edit., 1912) p. 134 [noting that a legislature
―can, of course, consult‖ ―the electors‖ ―by means of an informal vote‖].) More recently,
Markku Suski echoed those earlier observations: ―[T]here seems to be nothing that
would prevent a state legislature from organizing an advisory referendum‖ or ballot
measure. (Suski, Bringing in the People: A Comparison of Constitutional Forms and
Practices of the Referendum (1993) p. 89 (Bringing in the People).)
B. Nothing in the majority opinion’s analysis, or in fundamental legal principles
that guide this analysis, supports a conclusion that advisory measures are
confined to the article V context
The majority‘s legal analysis, recognizing that the Legislature‘s legislative
authority is plenary and there is nothing in the California Constitution that precludes the
Legislature from placing an advisory measure on the ballot, itself supports the conclusion
that no constitutional principle confines advisory measures to the article V context.27 In
this regard, four of the fundamental legal principles alluded to in the majority opinion
bear repeating here.
First and foremost: The California Legislature‘s legislative power, unlike that of
Congress under the federal Constitution, is plenary. As explained in hornbook passages
of numerous decisions, the Legislature enjoys ―all the powers and privileges which are
necessary to enable it to exercise in all respects, in a free, intelligent and impartial
manner, its appropriate functions, except so far as it may be restrained by the express
provisions of the Constitution, or by some express law made unto itself, regulating and
limiting the same.‖ (Ex parte D.O. McCarthy (1866) 29 Cal. 395, 403.) Moreover,
27 Likewise, the majority‘s analysis rejecting the structural points raised by
petitioners (maj. opn., ante, at pp. 31-37) applies as well to advisory ballot measures
outside the article V context. (See post, pt. III.)
22
― ‗our Constitution is not a grant of power but rather a limitation or restriction upon the
powers of the Legislature‘ ‖ — and we do not look to it in order ― ‗ ―to determine
whether the Legislature is authorized to do an act, but only to see if it is prohibited.‖ ‘ ‖
(Dean v. Kuchel (1951) 37 Cal.2d 97, 100.)28
Second: An essential attribute of the legislative function is the ― ‗determination
and formulation of legislative policy.‘ ‖ (Carmel Valley Fire Protection Dist. v. State of
California (2001) 25 Cal.4th 287, 299.) ―In fact it could be said that policymaking is the
legislative function.‖ (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205,
1219.) The Legislature‘s determination of policy comes into play not only with regard to
its traditional lawmaking function, but also with regard to its traditional function
concerning the issuance of resolutions reflecting a majority vote of each house,
expressing approval or disapproval of legislation pending or proposed in Congress, or
regarding programs or activities of the federal government.29 This resolution power has
28 In other words: ―[U]nlike the United States Congress, which possesses only those
specific powers delegated to it by the federal Constitution, it is well established that the
California Legislature possesses plenary legislative authority except as specifically
limited by the California Constitution.‖ (Marine Forests Society v. California Coastal
Com. (2005) 36 Cal.4th 1, 31.) ― ‗The most cursory examination . . . confirms how
distinctive state constitutions and governments are. The Federal Constitution restricts the
federal government both by imposing prohibitions on the government and by granting the
government only limited powers. Under state constitutions, by contrast, the second
restriction is largely missing, and thus the states exercise plenary legislative power.‘ ‖
(Id., at p. 29.)
29 See, e.g., Wilson et al., California‘s Legislature (2011) pages 120-121 (describing
the use of joint, concurrent, and separate Assem. and Sen. resolutions); Senate
Concurrent Resolution No. 37, Statutes 2015 (2015-2016 Reg. Sess.) resolution chapter
48 (filed with Sect. of State, June 2, 2015) rules 5 and 6, concerning adoption of the joint
rules of the Senate and Assembly for the 2015-2016 Regular Session; cf., 58 Cal.Jur.3d
(2015) Statutes, § 2 (―A . . . joint or concurrent resolution is one that is concurred by both
houses of the legislature‖ and ―takes effect upon the filing of it with the Secretary of
State‖; a ―resolution is not a legislative act, and the legislature in passing a resolution
does not exercise its lawmaking power‖).
23
been long employed by the California Legislature and those of other states in numerous
and widely varied contexts.30
30 See, e.g., Joint resolutions urging building of national railroad (Stats. 1849-1850,
p. 465); Senate Joint Resolution No. 8, Statutes 1919 (1919 Reg. Sess.) resolution chapter
15, page 1439 (urging that loans made to war allies not be forgiven or cancelled);
Assembly Joint Resolution No. 6, Statutes 1919 (1919 Reg. Sess.) resolution chapter 17,
page 1440 (urging acquisition of ― ‗Lower California‘ ‖ and the Coronado Islands from
Mexico); Senate Joint Resolution No. 18 (Statutes 1919 (1919 Reg. Sess.) resolution
chapter 29, page 1461 (urging support for self-determination of Ireland); Senate Joint
Resolution No. 23, Statutes 1982 (1981-1982 Reg. Sess.) resolution chapter 15, page
6701 (urging counseling and treatment for Vietnam veterans suffering from posttraumatic
stress disorders); Assembly Joint Resolution No. 8, Statutes 1993 (1993-1994 Reg. Sess.)
resolution chapter 11, page 7766 (seeking federal assistance to fund services for
undocumented immigrants); Assembly Joint Resolution No. 57, Statutes 2002 (2001-
2002 Reg. Sess.) resolution chapter 183, page 8029 (urging that enforcement of
immigration law remain a federal responsibility, and not a state or local law enforcement
responsibility); Senate Joint Resolution No. 7, Statutes 2005 (2005-2006 Reg. Sess.)
resolution chapter 35, page 6022 (urging Congress to protect women‘s right to equal pay
for equal work); Assembly Joint Resolution No. 6, Statutes 2005 (2005-2006 Reg. Sess.)
resolution chapter 57, page 6053 (urging relief and support for Darfur and its people);
Senate Joint Resolution No. 16, Statutes 2008 (2007-2008 Reg. Sess.) resolution chapter
68, page 5753 (urging establishment of an emergency prescription program for veterans);
Senate Joint Resolution No. 28, Statutes 2008 (2007-2008 Reg. Sess.) resolution chapter
107, page 5818 (urging new sodium consumption guidelines); Assembly Joint Resolution
No. 49, Statutes 2008 (2007-2008 Reg. Sess.) resolution chapter 98, page 5803 (urging
that the California gray whale be listed as an endangered species); Senate Joint
Resolution No. 21, Statutes 2014 (2013-2014 Reg. Sess.) resolution chapter 32 (urging
that Turkey acknowledge the Armenian Genocide).
Concerning the general use of resolutions in California and nationwide, see, for
example, Note, Legislative Notes and Reviews (1920) 14 Am. Pol. Sci. Rev. 672
(―[d]uring the legislative sessions of 1919 over 300 resolutions and memorials were
adopted [nationwide], of which 206 [were] of general public interest and 117 . . .
questions of local interest‖; in 1919 alone numerous state legislatures, including
California‘s, enacted resolutions concerning the League of Nations, ―aliens‖ and
immigrants, military personnel, education issues, women‘s suffrage, transportation
issues, and commodity prices, etc.); Leckrone and Gollob, Telegrams to Washington:
Using Memorials to Congress as a Measure of State Attention to the Federal Policy
Agenda (2010) 42 St. & Local Gov‘t Rev. 235, 239-240 (finding that more than 3,900
substantive ―memorials,‖ or resolutions, were submitted by state legislatures to Congress
(footnote continued on next page)
24
Third: The Legislature possesses powers that are necessary, incidental, and
―ancillary to the ultimate performance of [its] lawmaking functions.‖ (Parker v. Riley
(1941) 18 Cal.2d 83, 89.)31 In this regard the Legislature needs to be able to obtain
information supporting policy determinations that underlie any statutory law or resolution
that it considers.
Fourth and finally: ―The presumption which attends every act of the legislature is
that it is within the constitutional power‖ — and this ―presumption . . . holds good until it
is made to appear in what particular it is violating constitutional limitations.‖
(MacMillan Co. v. Clarke (1920) 184 Cal. 491, 496-497.) ― ‗If 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. [Any] restrictions and limitations are to be construed strictly,
and are not to be extended to include matters not covered by the language used.‘ . . .
[Citations.] Specifically, the express enumeration of legislative powers is not an
exclusion of others not named unless accompanied by negative terms.‖ (Dean v. Kuchel,
supra, 37 Cal.2d 97, 100, italics added in Dean.) In other words, ―all intendments favor
(footnote continued from previous page)
from 1987 to 2006; the Cal. Legislature was the most active, with 542 during that period;
and that nationwide, such measures were used to send signals to the federal government
across a broad range of policy issues, especially those ―topics traditionally reserved to
Congress,‖ including ―defense and international relations and foreign aid‖ as well as
―environment, health, and public lands [under] federal control‖); Filindra and Kovács,
Analyzing US State Legislative Resolutions on Immigrants and Immigration: The Role of
Immigration Federalism (2012) 50 Int‘l Migration 33, 36 (of 36 resolutions by state
legislatures to Congress between 1993 and 2007 concerning immigration issues,
California issued 25).
31 Incidental powers are implied in order to permit the Legislature to operate within
its proper sphere. ― ‗When a legislative body has a right to do an act it must be allowed
to select the means within reasonable bounds.‘ ‖ (Parker v. Riley, supra, 18 Cal.2d at p.
91, quoting Attorney-General v. Brissenden (1930) 271 Mass. 172, 180.)
25
the exercise of the Legislature‘s plenary authority.‖ (Methodist Hosp. of Sacramento v.
Saylor (1971) 5 Cal.3d 685, 691.)
C. Summary and conclusions concerning use of ballot measures to inform the
Legislature regarding issues of policy
As demonstrated earlier, advisory ballot measures have long been used by our
Legislature, those of other states, and local legislatures, to obtain information to inform
the legislative body about possible laws or resolutions. As observed more than 75 years
ago, even when the ultimate decisionmaking power remains with the ―presumably
technically more qualified . . . legislature‖ (whose members retain and employ ―full
power to act independently, whether it be in accordance with or against the wishes of the
people‖), an advisory ballot measure is a useful device for securing ―authoritative popular
participation in public policy-making upon a non-legislating basis‖ and ―facilitating
communication between the electorate and its representatives.‖ (The Advisory
Referendum, supra, 14 Pub. Opin. Q. at pp. 304, 315.)
For similar reasons, nearly 40 years ago Chief Justice Rehnquist approved the
same kind of advisory communication between the electorate and its representatives in
Kimble v. Swackhammer (1978) 439 U.S. 1385. As the majority opinion observes (ante,
at p. 26), in that matter, acting as circuit judge, then Associate Justice Rehnquist refused
to remove from the Nevada ballot an advisory measure submitted by the state legislature,
seeking the electorate‘s views on the proposed Equal Rights Amendment. Justice
Rehnquist explained that he would be ―most disinclined‖ to read the high court‘s prior
cases or the federal Constitution ―as ruling out communication between the members of
the legislature and their constituents. If each member of the Nevada Legislature is free to
obtain the views of constituents in the legislative district which he represents, I can see
no constitutional obstacle to a nonbinding, advisory referendum of this sort.‖ (Id., at pp.
1387-1388, italics added; see also Kimble v. Swackhammer (Nev. 1978) 584 P.2d 161
[rejecting challenges to the advisory measure in the face of a dissenting justice who
26
suggested that the legislature had no authority under the state constitution to submit such
a ballot measure to the voters].)
As these sources, combined with the California constitutional history, cases and
authorities addressing advisory measures, and myriad examples of advisory measures
discussed above suggest — and in light of the guiding principles mentioned earlier,
including the Legislature‘s plenary authority, its core role in shaping and articulating
policy, and the deference that we afford to the Legislature‘s determination of its exercise
of power — it follows that the Legislature may inform itself by enacting a statute that
places an advisory question on the ballot in order to obtain the voters‘ policy views with
regard to any potential action that the Legislature has authority to undertake. Whether
the legislative body proceeds by posing a list of interrogatory policy questions to the
electorate, or, as most often, a single, straightforward question, the goal is the same: to
inform itself about the policy preferences of the voters relating to a matter upon which
the legislative body has authority to act. And in pursuing this information-gathering goal
by placing an advisory ballot measure before the voters concerning such a matter —
whether related to its article V role, its general lawmaking function, or its power to issue
resolutions — a legislative body acts reasonably and within its powers.
Nor do I perceive any reason to question, as a general matter, either the efficacy or
the prudence of this form of information gathering by a legislative body. As the majority
opinion observes, ―[i]n a representative democracy, legislators are generally expected to
be responsive to their constituents.‖ (Maj. opn., ante, at p. 35.) In this regard, recent
empirical scholarship suggests that in practice, the use of advisory measures is
efficacious, providing pertinent information to a legislative body, and that legislative
bodies have employed the information obtained from results of advisory ballot measures
when deciding whether, and how, to undertake actions reasonably within their own
powers. A study of local advisory ballot measures in California revealed that county
boards and city councils complied with the advice of the voters more than 80 percent of
27
the time — while still exercising,
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