Brosnahan v. Eu

BIRD, C. J.,

Dissenting. — -With some reluctance, I write separately to express my reservations about some troubling aspects of today’s decision. I fear that the tremendous time pressure surrounding this case has forced this court to set down precedent that may return one day to haunt us. Further, a number of difficult, unresolved issues concerning the Legislature’s last-minute revisions of the laws governing initiative petitions have not been addressed.

At first blush, it would appear that the Legislature’s speedy action on this matter was a blessing for the court, taking us off the hook and arguably rendering moot an issue that might well have proved thorny and divisive. Perhaps, we should be grateful for the Legislature’s extraordinary speed and accept our deliverance with quiet tbanks. However, this easy and practical solution does not adequately resolve the legal issues presented by this bail-out statute.

Without a doubt, the Legislature has the power to change the rules governing the qualification of initiative measures for the ballot. The California Constitution mandates that initiative petitions contain a certain number of valid signatures but specifically authorizes the Legislature to provide a method for the certification of such measures. (Art. II, § 8, subd. (b) and § 10, subd. (e).) Clearly, the Legislature is authorized to enact, revise and amend its regulations. In this case, however, the method chosen by the Legislature to alter long-standing statutes raises several serious questions.

The most troubling aspect of the Legislature’s action is that it creates a one-time-only exception (o a statutory scheme. Normally, signatures must be individually verified and counted unless a statistical sample shows that the petitions contain more than 110 percent of the requisite number. For this election only — apparently for this initiative only — 105 percent will be sufficient. In effect, the Legislature has isolated an initiative which it favors and changed the qualification requirements for it 'alone. In the future, can we expect to see similar exceptions made whenever an attractive or politically volatile initiative fails to qualify under the normal procedures that apply to everyone else?

*15 Here, the Legislature has set up a new method by which to qualify an initiative: if an initiative fails to qualify according to the requirements set down by statute, the proponents simply lobby the Legislature for a special statute which would exempt their proposal.

What problems will this case-by-case bending of the rules create in the future? Will the Legislature extend this privilege to all initiatives that fall short of the 110-percent cutoff — or only to initiative measures that it favors? Will proponents of initiatives that are rejected because they fail to meet the 110-percent cutoff be entitled to assert equal protection challenges if the Legislature refuses to grant them the same relief?

Such individual exemptions from the rules established by the statutes make a mockery of the whole initiative process. By using a sliding scale of qualification which varies from initiative to initiative, the Legislature has improperly injected itself into an arena in which it has no place, for the Constitution reserves to the people the power to qualify and vote on initiative measures. Only a neutral, evenhanded body of law governing the qualification process can ensure that the initiative process remains open to all of the people, free from arbitrary loopholes and exceptions.

This statute also represents an end-run around a clear mandate of the California Constitution. Article II, section 8, subdivision (c) requires that an initiative measure be placed on the ballot at the next general election “held at least 131 days after it qualifies . . ..” This initiative, therefore, could be placed on the June 1982 ballot only if it qualified as of January 28, 1982. 1 Clearly, it did not. As of that date, the initiative had failed to qualify by either of the then-permissible means — a statistical sample showing more than 110 percent of the requisite number of valid signatures or an individual count of the signatures.

*16 May the Legislature nqw change the rules and retroactively declare the initiative qualified as of last January? Such an act of legerdemain threatens to defeat the purpose of the constitutional mandate. The 131-day rule serves as a guarantee that the electors will have an adequate opportunity to carefully and thoroughly analyze an initiative measure before casting their votes. By deeming an initiative qualified after a substantial part of the 131-day period has already passed, the Legislature decreases the time available for discussion and debate on the measure. If the initiátive passes in June, will there be litigation claiming that the measure cannot be enforced because of the substantial shortening of the constitutionally required time period in which to campaign against the measure?

The Legislature’s action also raises a host of additional questions. Does the new statute create a reasonable legislative classification? Is there any rational reason to favor one initiative without granting the same relief to all future initiative petitions? Does the statute violate article IV, section 16 of the Constitution, which provides that a special statute is invalid if it covers an area to which a general statute already applies? Finally, does this statute represent an impermissible legislative incursion into the adjudication of the legal merits of a pending case? Clearly, the Legislature through its action resolved the legal issue in this case for the majority of the court. Who then was the real adjudicator, the court or in truth the Legislature? These issues remain unexplored since they were not fully briefed by the parties nor fully analyzed by the court.

As the initiative and referendum processes become more and more frequently used by the peqple, the need for uniformity and predictability in the statutes and case law governing them grows. For this reason, I join my colleague Justice Mosk in urging that the court address the single-subject issue now, before the initiative is placed on the ballot. Should the court determine that the measure as presently drafted fails to satisfy that rule, an early resolution would enable the proponents of the measure to redraft the initiative. If a majority of the voters do favor some or all of the initiative’s provisions, a postelection ruling that the single-subject rule has been violated will only delay the ability of the people to implement their will. California’s citizens have a right to know now. The failure to rule on this issue does not implement the will of the people but merely postpones the problem, creating the possibility of an even greater frustration of that will in the future.

*17 In addition, an immediate decision on this issue would clarify the governing law in an area that is now the source of much confusion. Initiative proponents have a right to be spared endless litigation over the procedural adequacy of their measures. This court should address the issue squarely, setting forth the constitutional requirements so that the proponents of future initiative measures will know what the Constitution requires of them.

I share Justice Mosk’s view that this initiative violates the single-subject rule. The numerous provisions of the initiative fail to satisfy the stringent requirement of a functional relationship in furtherance of a common underlying purpose. Even if each of the provisions might be said to further the broad general purposes of deterring crime and protecting the public from the consequences of crime, the provisions do not have any functional relationship to each other. Thus, the requirement of restitution to victims is not related to the redefinition of insanity — or, in fact, to any of the other provisions of the initiative. Similarly, the declaration that students and staff have a right to safe schools is not functionally related to the other provisions.

Numerous provisions which fall under some broad single subject may withstand a single-subject challenge, but only if the provisions fit together into some cohesive whole. 2 The disparate provisions of this statute do not meet this test. They represent a grab bag of proposals designed to respond to concerns about crime, safety in the schools, and the expenditure of public funds. However well meaning each section might be individually, as a group these subjects are too diverse and unrelated to meet the requirements of the single-subject rule.

An additional issue, not raised by the parties here, apparently has never been resolved by this court. The Constitution requires that initiative and referendum measures be submitted to the voters “at the next general election” after the measures qualify, or at a special election called by the Governor. (Cal. Const., art. II, § 8, subd. (c) and § 9, subd. (c), italics added.) The Elections Code defines a general election as “the election held throughout the state on the first Tuesday after the first Monday of November in each even-numbered year.” (Elec. Code, § 20.) A special election is an election the timing of which is not otherwise prescribed by law. (Elec. Code, § 27.) The election scheduled for June of 1982 is a regularly scheduled “direct primary” (see Elec. Code, § 23) — not a special election or a general election. Thus, the constitutionality of submitting an initiative to the voters at a June primary election would appear to be an open question.

See, e.g., Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 229-232 [ 149 Cal.Rptr. 239 , 583 P.2d 1281 ], finding that the separate provisions of the property tax relief initiative were all “reasonably interrelated and interdependent, forming an interlocking ‘package’ deemed necessary ... to assure effective real property tax relief.” (Id., at p. 231.) “Each of the four basic elements of article XIII A was designed to interlock with the others ....” (Id., at p. 232.)