Johnson v. Bradley

KENNARD, J., Concurring.

—I agree with the majority and with Justice Mosk that Government Code section 85300 (hereafter section 85300), part of a 1988 initiative measure known as Proposition 73, does not invalidate Measure H, an ordinance of the City of Los Angeles. Although they agree on the result, the majority and Justice Mosk disagree on the proper legal ground of decision. I write separately to explain my own views on this disagreement.

In this case, petitioners maintain that Measure H conflicts with section 85300, and that because state law generally takes precedence over local enactments, this conflict must be resolved by declaring Measure H invalid. In defense of Measure H, this court has been presented with two separate and distinct theories. One of these theories is that Measure H prevails over conflicting state laws under the home rule provision of the California Constitution (art. XI, § 5) because it is a charter city ordinance addressing a purely municipal affair. The other theory is that section 85300 is itself invalid because it is not severable from other provisions of Proposition 73 that the Ninth Circuit has declared invalid on the ground that they violate the First and Fourteenth Amendments to the federal Constitution. (See Service Emp. Intern, v. Fair Political Prac. Com’n (9th Cir. 1992) 955 F.2d 1312 .)

The majority upholds Measure H under the home rule theory without deciding whether section 85300 is severable from the provisions of Proposition 73 that the Ninth Circuit has declared invalid. Justice Mosk, on the other hand, would uphold Measure H under the theory that section 85300 is *412 nonseverable and therefore invalid, without addressing the home rule issue. I agree with the majority that this case is properly decided on the home rule theory without determining the validity of section 85300.

To decide which of the two alternative legal theories argued in this case should receive priority of consideration, I begin by recognizing that the judicial power to declare either a statute or an ordinance invalid should be exercised only when strictly necessary to decide an actual controversy. 1 This salutary principle serves to eliminate unnecessary friction between the legislative and judicial branches of government, and unnecessary interference with the electorate’s right of initiative. In the words of the United States Supreme Court, exercise of the power to declare legislation invalid “is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy . . . .” (Chicago Ry. Co. v. Wellman (1892) 143 U.S. 339, 345 [ 36 L.Ed. 176, 179-180 , 12 S.Ct. 400 ]; see also Ashwander v. Valley Authority (1936) 297 U.S. 288, 345 [ 80 L.Ed. 688, 709-710 , 56 S.Ct. 466 ] (conc. opn. of Brandeis, J.); Syrek v. California Unemployment Insurance Appeals Board (1960) 54 Cal.2d 519, 526 [ 7 Cal.Rptr. 97 , 354 P.2d 625 ].)

The most common basis for declaring a statute invalid is that it violates a constitutional provision. The principle that courts should avoid passing on the validity of statutes is thus related to, and frequently a particular application of, the broader principle that a court should decide a constitutional question only if it is absolutely necessary to do so. (Rosenberg v. Fleuti (1963) 374 U.S. 449, 451 [ 10 L.Ed.2d 1000, 1002-1003 , 83 S.Ct. 1804 ]; People v. Leonard (1983) 34 Cal.3d 183, 187 [ 193 Cal.Rptr. 171 [ 666 P.2d 28 ]; People v. Williams (1976) 16 Cal.3d 663, 667 [ 128 Cal.Rptr. 888 , 547 P.2d 1000 ].)

One way that courts can avoid passing on the constitutional validity of a statute is to construe the statute in a manner that avoids conflict with constitutional restrictions on legislative power. Thus, when a court is asked to nullify a statute on the ground that it violates the state or federal Constitution, the court should “ ‘first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’ ” (United States v. Thirty-Seven Photographs (1971) 402 U.S. 363, 369 [ 28 L.Ed.2d 822, 829-830 , 91 S.Ct. 1400 ].)

*413 How do these principles apply in this case? Here we are asked to resolve a possible conflict between a state statute (§ 85300) and a charter city ordinance (Measure H). In California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1 [ 283 Cal.Rptr. 569 , 812 P.2d 916 ], we said that the first step a court should take to resolve such a conflict is to “satisfy itself that the case presents an actual conflict between the two.” (Id. at p. 16.) In other words, a court should determine first whether it is reasonably possible to construe the statute or the ordinance in a manner that reconciles the two and thereby avoids having to decide which takes precedence.

In this case, it is not reasonably possible to construe either section 85300 or Measure H in a manner that does not put them in conflict. Section 85300 prohibits public financing of political campaigns for elective office at all levels of government, while Measure H provides for partial public financing of municipal elections by local taxes. Because section 85300 and Measure H are irreconcilable, this court must decide which is to prevail. 2

As I have stated, two distinct legal theories have been proposed in defense of Measure H: the theory that Measure H takes precedence over conflicting state law under the home rule provision of the state Constitution (art. XI, § 5) and the theory that Measure H prevails because section 85300 is not severable from other provisions of Proposition 73 that the Ninth Circuit has struck down as violative of the federal Constitution.

As Justice Mosk points out in his concurring and dissenting opinion, the home rule theory requires us to address a question of constitutional magnitude by interpreting and applying the home rule provision of the state Constitution, and in so doing requires us to decide whether a law—Measure H—should be declared invalid. But the nonseverability theory requires us to address questions of at least equal gravity. To address that theory, this court would have to decide whether section 85300 is invalid because it is part of an initiative measure, Proposition 73, that the Ninth Circuit has found to violate the federal Constitution by invidiously discriminating in favor of incumbents and against other candidates for elective office. (See Service Emp. Intern. v. Fair Political Prac. Com’n, supra, 955 F.2d 1312 .) This analysis would also require us to consider constitutional questions and to decide whether a law—section 85300—should be declared invalid.

Because we must rule on the validity of a legislative enactment under either theory, and because constitutional questions are implicated under *414 either theory, the majority has violated no principle of judicial practice by giving priority of consideration to the home rule theory rather than the severability theory. 3 Indeed, under the principles of judicial practice previously mentioned, addressing the home rule theory appears to be preferable because the validity determination under that theory affects only a local ordinance, whereas the validity determination under the severability theory affects a state law, and because in upholding Measure H under the home rule theory we invalidate neither the local nor the state law.

Like most judicial rules, this one has an exception. A court may address the validity of a statute, notwithstanding an alternate basis of decision, when there is an urgent public need to resolve the validity question. (See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 233 [ 149 Cal.Rptr. 239 , 583 P.2d 1281 ].) The exception does not appear applicable to this case.

The majority declines to decide whether there is an actual conflict between Measure H and section 85300 because it believes that to do so would require it to determine whether “section 85300 has been rendered inoperative as a result of proceedings in federal court.” (Maj. opn., ante, at pp. 400-401.) I do not agree. In my view, the actual conflict inquiry goes only to the interpretation, not the validity, of the assertedly conflicting provisions.

For this reason, I do not agree with Justice Mosk’s characterization of the majority’s analysis of the home rule theory as an advisory opinion.