People v. Skinner

MOSK, J.

I concur in the excellent analysis of the majority. I write only to relate some relevant background. As Oliver Wendell Holmes observed, “a page of history is worth a volume of logic.” (New York Trust Co. v. Eisner (1921) 256 U.S. 345, 349 [ 65 L.Ed. 963, 983 , 41 S.Ct. 506 , 16 A.L.R. 660 ].)

In 1973 I wrote a separate opinion in People v. Kelly (1973) 10 Cal.3d 565, 578 [ 111 Cal.Rptr. 171 , 516 P.2d 875 ], urging that the M’Naughton test 1 be “disavowed] as outmoded and unsupportable in either medical science or law,” and that pending legislative action the American Law Institute formulation be adopted by trial courts as the test for insanity. (ALI Model Pen. Code, § 4.01.) At that time six states had adopted the ALI formulation, as had every federal circuit but one. (Id. at p. 582.)

Within five years a majority of this court had come around to my view in Kelly and judicially adopted the ALI test in People v. Drew (1978) 22 *785 Cal.3d 333 [ 149 Cal.Rptr. 275 , 583 P.2d 1318 ]. Despite my invitation in Kelly the Legislature had not taken any action, and it did not do so after Drew . I can only surmise that the legislators’ disinterest was born of the belief that the test of insanity was a judicial problem, since the M’Naughton test had originally been court-created.

Just as trial courts, prosecutors and defense counsel were achieving a reasonable détente with Drew , the initiative measure known as Proposition 8 was prepared and submitted to the electorate. It contained the latent ambiguity discussed in the majority opinion. Therein lies one of the problems inherent in attempting to adopt rules of evidence and arcane principles of law by popular vote. It is somewhat comparable to the public deciding by popular vote the appropriate technique for surgeons to employ in brain surgery.

I am convinced that the use of “and” instead of “or” would have been discovered in the traditional legislative process. In an assembly committee, on the floor of the assembly, in a senate committee, on the floor of the senate, in the Governor’s veto opportunity, such inadvertence would likely have been detected, or if the choice of words was deliberate, such intent would have been clearly declared. In an initiative measure, however, no revision opportunity is possible and no legislative intent is available; the voter has only the choice of an enigmatic all or nothing.

In this instance the choice given voters was encumbered by at least 12 subjects subsumed within what was titled Proposition 8. The numerous subjects were itemized by the Attorney General in his prepared title for submission to the voters and he concluded with a catchall, “and other matters.” I remain convinced that Proposition 8 was invalid as a clear violation of the constitutional prohibition against multiple subjects. (Cal. Const., art. II, § 8, subd. (d); see my conc. & dis. opn. in Brosnahan v. Eu (1982) 31 Cal.3d 1, 6 [ 181 Cal.Rptr. 100 , 641 P.2d 200 ].) For example, it would appear impossible to rationalize, as but one subject, a return to the M’Naughton rule of insanity and a guarantee of school safety. Regrettably, by a four-to-three majority, my colleagues expediently failed to invalidate the initiative. Had they done so, much of the subsequent uncertainties and incongruities in the criminal law would have been avoided.

Since I am bound by stare decisis to accept that untoward result, I must now join in undertaking the often thankless task of trying to inject some rational meaning into the numerous disparate subjects covered by Proposition 8. The clumsy effort to “return to M’Naughton” is but the latest controversy.

*786 The analysis of the majority being as reasonable and pragmatic as the circumstances justify, I endorse their opinion.

The majority spell the test M’Naghten. All the members of this court spelled it M’Naughton in Kelly , although I there noted the numerous variants of the spelling. (Ibid., fn. 1.) In the interests of clarity and consistency I believe we should adhere to the spelling we used in Kelly .