The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 92-104
of :
: MARCH 31, 1992
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. DaVIGO :
Deputy Attorney General :
:
______________________________________________________________________________
This office has been requested to grant leave to sue in quo warranto upon the
following:
ISSUES OF FACT OR LAW
1. Is quo warranto an appropriate remedy for testing the validity of a proposed
statewide initiative?
2. Would such an action be in the public interest (a) prior to the submission of
the initiative measure to the electorate, or (b) prior to the resolution of the same issues now pending
before the Public Employment Relations Board?
DISPOSITION
1. Quo warranto is not an appropriate remedy for testing the validity of a
proposed statewide initiative.
2. Such an action would not be in the public interest (a) prior to the submission
of the initiative measure to the electorate, or (b) prior to the resolution of the same issues now
pending before the Public Employment Relations Board.
PARTIES
BRUCE J. BLANNING et al. ("relators") contend that PETE WILSON, Governor
of the State of California ("defendant") has exceeded his constitutional and statutory authority in
proposing a constitutional initiative without first engaging in collective bargaining negotiations with
recognized state employee organizations.
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MATERIAL FACTS
Defendant has proposed an initiative denominated the "Government Accountability
and Taxpayer Protection Act of 1992," which would amend the Constitution and laws of California
in a manner which, for purposes of this opinion, would concededly affect the wages, hours, terms,
and conditions of employment of state employees. Defendant did not meet and confer with state
employee organizations in connection with the proposed initiative.
PRINCIPAL CONTENTIONS
Relying upon Government Code section 3516.5,1 relators contend that defendant was
obligated to meet and confer with them prior to proposing the initiative at issue. Section 3516.5
provides as follows:
"Except in cases of emergency as provided in this section, the employer shall
give reasonable written notice to each recognized employee organization affected by
any law, rule, resolution, or regulation directly relating to matters within the scope
of representation proposed to be adopted by the employer, and shall give such
recognized employee organizations the opportunity to meet and confer with the
administrative officials or their delegated representatives as may be properly
designated by law."
Defendant contends that whether as Governor he should be constitutionally
authorized to affect state employee salaries in response to a fiscal emergency is a matter of
fundamental policy not within the scope of representation. In this regard, section 3516 provides as
follows:
"The scope of representation shall be limited to wages, hours, and other terms
and conditions of employment, except, however, that the scope of representation
shall not include consideration of the merits, necessity, or organization of any service
or activity provided by law or executive order."
ANALYSIS
APPROPRIATE REMEDY
The first issue to be addressed is whether a quo warranto proceeding would provide
an appropriate forum for examining the validity of a proposed statewide initiative. In 74
Ops.Cal.Atty.Gen. 77, 78 (1991), we pointed out that quo warranto would be an appropriate remedy
by which to challenge the validity of a city or county charter. (See The People ex rel. Seal Beach
Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 595; County of Santa Clara v.
Hayes Co. (1954) 43 Cal.2d 615, 618; International Assn. of Fire Fighters v. City of Oakland (1985)
174 Cal.App.3d 687, 694; Oakland Mun. Imp. League v. City of Oakland (1972) 23 Cal.App.3d 165,
169.)
Our attention has not been directed, however, to any precedent for the employment
of this remedy to test the validity of a proposed statewide initiative. The statutory authority for a
quo warranto action brought by the Attorney General is found in Code of Civil Procedure section
803 as follows:
1
All section references hereafter are to the Government Code unless otherwise specified.
2. 92-104
"An action may be brought by the attorney-general, in the name of the people
of this state, upon his own information, or upon a complaint of a private party,
against any person who usurps, intrudes into, or unlawfully holds or exercises any
public office, civil or military, or any franchise, or against any corporation, either de
jure or de facto, which usurps, intrudes into, or unlawfully holds or exercises any
franchise, within this state. . . ."2
We find no basis in the above statute or in any judicial decision for the invocation
of a quo warranto action in connection with a challenge to the validity of a statewide initiative. (See,
e.g., American Federation of Labor v. Eu (1984) 36 Cal.3d 687 [writ of mandate challenging
validity of proposed "Balanced Federal Budget Statutory Initiative"]; Legislature v. Deukmejian
(1983) 34 Cal.3d 658 [writ of mandate against Governor to restrain expenditure of public funds for
initiative to realign legislative and congressional districts]; Brosnahan v. Eu (1982) 31 Cal.3d 1 [writ
of mandate to prohibit placement of "The Victims' Bill of Rights" initiative on ballot]; Kevelin v.
Jordan (1964) 62 Cal.2d 82 [mandamus to prohibit filing of statement of vote for "An Act to
Preserve Free Television in California"]; California Trial Lawyers Assn v. Eu (1988) 200
Cal.App.3d 351 [writ of mandate challenging validity of proposed "Insurance Cost Control Initiative
of 1988"].)
The writ of quo warranto is not an appropriate remedy for the relief sought, and for
that reason alone, the application for leave to sue is DENIED.
PUBLIC INTEREST
Even assuming that quo warranto were an appropriate remedy, granting relators'
application would not, under the circumstances presented, be in the public interest. In this regard,
leave to sue will be granted where there is a substantial question of law or fact which requires
judicial resolution, and where the action in quo warranto would serve the overall public interest.
(75 Ops.Cal.Atty.Gen. 10, 11 (1992).)
A. Prior to Passage by Electorate
Judicial action to test the validity of an initiative measure in the midst of the electoral
process is not favored. In Mulkey v. Reitman (1966) 64 Cal.2d 529, for example, in considering the
constitutionality of an initiative measure, the court noted that it had previously ruled "`it would be
more appropriate to pass on those questions after the election . . . than to interfere with the power
of the people to propose laws and amendments to the Constitution and to adopt or reject the same
at the polls . . . .'" (Id. at 535; see Wind v. Hite (1962) 58 Cal.2d 415, 417.)
In Kevelin v. Jordan, supra, 62 Cal.2d 82, the court held that, regardless of how
clearly an initiative measure's unconstitutionality may appear, it would be an intolerable interference
with the people's reserved legislative power to prevent the official recordation of their vote on such
a proposition by the Secretary of State, and consequently a writ of mandate directing the Secretary
of State not to file a statement of the vote was denied without prejudice to the right to challenge the
measure's constitutionality after it went into effect. (Id. at 83; see Brosnahan v. Eu, supra, 31 Cal.3d
at 4.)
2
Although the writ of quo warranto was abolished in California in 1872, we and the courts
continue to use the term "quo warranto" for convenience in describing the action authorized by Code
of Civil Procedure section 803. (See International Assn. of Fire Fighters v. City of Oakland, supra,
174 Cal.App.3d at 693, fn. 10.)
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While judicial deference to the electoral process is neither universal nor jurisdictional
(see Citizens for Responsible Behavior v. Superior Court (1991) 1 Cal.App.4th 1013, 1021-1023
[proposed ordinance both substantively invalid and beyond the power of the electorate to enact];
California Trial Lawyers Assn. v. Eu, supra, 200 Cal.App.3d at 357 [single subject violation "may
not be submitted to electors"; Cal. Const., art. II, § 8, subd. (d)]), if an action were authorized at this
stage of the electoral process to challenge the initiative in question, the court would, in our view,
reach the same result as in Mulkey and Kevelin.
B. Prior to Resolution of Pending Administration Proceeding
We are advised that the same issues sought to be presented to a court by the relators'
application here are now pending in a proceeding before the Public Employment Relations Board.
Specifically, the underlying issue whether defendant was required to meet and confer with state
employee organizations prior to proposing this statewide initiative measure was appealed to the
board and is now pending. It is obvious that the board has initial or primary, if not exclusive,
jurisdiction in the premises over what is essentially a charge of unfair labor practice. (§ 3514.5; San
Jose Teachers Assn. v. Superior Court (1985) 38 Cal.3d 839, 863; Pacific Legal Foundation v.
Brown (1981) 29 Cal.3d 168, 198; San Diego Teachers Association v. Superior Court (1979) 24
Cal.3d 1.)3
While the availability of alternative remedies does not always preclude an action in
quo warranto as a matter of law (see Citizens Utilities Co. v. Superior Court (1976) 56 Cal.App.3d
399, 404-405), we have considered the existence of such alternatives in the context of the public
interest (74 Ops.Cal.Atty.Gen. 31, 32 (1991); 12 Ops.Cal.Atty.Gen. 340, 342 (1949)). Where such
alternatives have been undertaken, we do not deem it within the public interest to try the same issues
in multiple proceedings. (74 Ops.Cal.Atty.Gen., supra, at 32; 73 Ops.Cal.Atty.Gen. 188, 190
(1990).)
It is determined that the application for leave to sue should be and is hereby
DENIED.
*****
3
The board's construction of a statutory provision falling squarely within its legislatively
designated field of expertise is to be regarded with deference by a court and will generally be
followed unless clearly erroneous. (Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29
Cal.3d 848, 859; People v. McGee (1977) 19 Cal.3d 948, 961; 72 Ops.Cal.Atty.Gen. 25, 29, fn. 4
(1989).)
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