Manduley v. Superior Court

MORENO, J.

I concur in parts I through V of the majority opinion and concur in the result. But as explained below, I take issue with much of the majority’s analysis of the single-subject rule and with the way this court has defined the single-subject rule in prior case law.

I.

On the March 7, 2000 ballot on which Proposition 21 appeared, there were 17 initiatives and one referendum, including complex and important matters involving election reform, limits on same-sex marriages, voting requirements for school bonds, and approval of Indian gaming compacts. The texts of the proposed laws took 56 double-columned pages of small (9 point) type. The ballot summaries and arguments were 78 pages long. It is doubtful that the average judge or lawyer, let alone the average layperson, comprehended all the material within these pages.

Although many of the reforms suggested to reduce the volume and complexity of the legislative choices faced by voters are beyond the scope of this court’s power to implement, there is one measure already available to us: the rigorous enforcement of the single-subject rule. It is unlikely that the drafters of the rule in 1948, when there were only eight propositions on the ballot, could have envisioned the initiative explosion that was to occur 40 and 50 years later. But their purpose was clearly to create a more manageable initiative process suitable for the average voter with limited time and resources. The ballot argument in favor of the single-subject rule stated that one of the principal reasons for the single-subject rule is to achieve “simplification and clarification of issues presented to the voters.” (Ballot Pamp., *585 proposed amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 2, 1948) p. 8.) Elaborating on this purpose, the ballot argument stated: “Today, any proposition may be submitted to the voters by initiative and it may contain any number of subjects. . . . The busy voter does not have the time to devote to the study of long, wordy, propositions and must rely upon such sketchy information as may be received through the press, radio or picked up in general conversation. If improper emphasis is placed upon one feature and the remaining features ignored, or if there is a failure to study the entire proposed amendment, the voter may be misled as to the over-all effect of the proposed amendment. [¶] [The single-subject rule] entirely eliminates the possibility of such confusion inasmuch as it will limit each proposed amendment to one subject and one subject only.” (Ibid.)

Moreover, as we recognized in Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1160 [ 90 Cal.Rptr.2d 810 , 988 P.2d 1089 ], the single-subject rule was also designed to prevent “‘ “an unnatural combination of provisions . . . dealing with more than one subject” ’ [citations] that have been joined together simply for improper tactical purposes.” In other words, the single-subject rule was intended to discourage what has been called “logrolling.” (See Minger, Putting the “Single” Back in the Single-Subject Rule: A Proposal for Initiative Reform in California (1991) 24 U.C. Davis L.Rev. 879.) Jones itself illustrates this type of mischief: a presumably popular measure, reduction of legislative salaries, was conjoined with a less popular measure, shifting reapportionment from the Legislature to this court. The single-subject rule was designed in part to ensure that each legislative measure succeeds or fails on its own merits.

Unfortunately, this court has generally not interpreted the single-subject requirement to accomplish these basic purposes. In our first case to consider the single-subject rule, Perry v. Jordan (1949) 34 Cal.2d 87 [ 207 P.2d 47 ], this court ignored the language of the ballot argument quoted above. Instead it assumed, without explanation, that the single-subject rule for initiatives should be defined in the same manner as the single-subject requirement imposed on legislation passed by the Legislature, found at the time in article IV, section 24 of the California Constitution. Following case law interpreting this latter section, we concluded that the requirement should “ ‘be construed liberally to uphold proper legislation, all parts of which are reasonably germane.’ ” (Perry v. Jordan, supra, 34 Cal.2d at p. 92 , italics added.)

The Perry court thus disregarded the ballot argument’s specific concern with avoiding information overload and voter confusion, and instead grafted the single-subject rule for the Legislature onto the single-subject requirement for initiatives. But the differences between the initiative and legislative *586 process are substantial: in the latter case, a proposed bill is scrutinized by legislators and their staffs, is assigned to legislative committees for hearings, is often amended during this process, and is finally reviewed by the Governor. Initiatives do not receive comparable scrutiny, and the voters are unable to amend them. “The result of this inflexibility is that more often than not a proposed initiative represents the most extreme form of law which is considered politically expedient. . . . [¶] It is because of the voters’ lesser ability to scrutinize a proposal and their total inability to propose modifications, that the multisubject initiative presents greater dangers than a similar multisubject legislative bill.” (Schmitz v. Younger (1978) 21 Cal.3d 90, 99-100 [ 145 Cal.Rptr. 517 , 577 P.2d 652 ] (dis. opn. of Manuel, J.).)

Unfortunately, our subsequent cases have uncritically followed Perry v. Jordan, employing a liberally interpreted “reasonably germane” test rather than a test designed, as the ballot argument to the single-subject rule states, to “eliminate[ ] the possibility” of voter confusion caused when “improper emphasis is placed upon one feature and the remaining features [are] ignored.” (Ballot Pamp., proposed amends to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 2, 1948) p. 8; see, e.g., Raven v. Deukmejian (1990) 52 Cal.3d 336 [ 276 Cal.Rptr. 326 , 801 P.2d 1077 ] [varied package of criminal justice reforms held not to violate the single-subject rule]; Brosnahan v. Brown (1982) 32 Cal.3d 236 [ 186 Cal.Rptr. 30 , 651 P.2d 274 ] [same].) In so doing, this court has come close to rendering the single-subject rule meaningless.

In contrast, the Florida Supreme Court, for example, has been rigorous in its enforcement of the single-subject requirement as it pertains to voter initiatives that amend the Florida Constitution. (See Fla. Const., art. XI, § 3 [any constitutional revision or amendment by the electorate “shall embrace but one subject and matter directly connected therewith”].) In the seminal case of Fine v. Firestone (Fla. 1984) 448 So.2d 984 , the court determined that the single-subject rule for constitutional initiatives should be interpreted more strictly than a comparable single-subject requirement imposed on the Legislature, for reasons similar to those discussed above. The court stated the focus of its inquiry as one of determining whether a proposed amendment “has a logical and natural oneness of purpose,” considering “whether the proposal affects [separate] function[s] of government” and how “the proposal affects a section of the constitution.” (Id. at p. 990.) Moreover, the court has also rigorously enforced Florida Statutes section 101.161, which requires the chief purpose of any constitutional amendment submitted to the voters to be clearly contained in an explanatory statement “not exceeding 75 words in length.” (See Advisory Opin. to Atty. Gen. re Pub. Educ. (Fla. 2000) 778 So.2d 888, 892 .) The Florida Supreme Court has accordingly invalidated *587 a number of initiatives over the last 15 years. (See, e.g., Advisory Opin. to Atty. Gen. re Pub. Educ., supra, 778 So.2d at p. 893 [anti-affirmative-action initiative concerned with three distinct subjects—public education, public employment, and public contracting—violates single-subject rule]; Advisory Opinion to Attorney General (Fla. 1997) 699 So.2d 1304 [same for initiative that would create exception to single-subject rule for property rights and tax reform measures]; Advisory Opinion to Atty. Gen. re Tax (Fla. 1994) 644 So.2d 486 [same for initiative reforming both taxes and user fees]; Evans v. Firestone (Fla. 1984) 457 So.2d 1351 [same for initiative that would cap tort damages and reform summary judgment proceedings]; Fine, supra, 448 So.2d 984 [same for initiative that reforms taxation, user fees, and use of revenue bonds for capital improvement].)

While the Florida Supreme Court’s interpretation of its own single-subject rule may be somewhat overly stringent for California, some kind of reasonable middle ground between that court’s rigor and this court’s laxity seems in order. To be sure, there are inherent conceptual difficulties in formulating the proper constitutional standard for enforcing the single-subject requirement. As commentators have pointed out, the term “subject” is problematic to define with any precision because almost any two legislative measures may be considered part of the same subject if that subject is defined with sufficient abstraction. (See Lowenstein, California Initiatives and the Single Subject Rule (1983) 30 UCLA L.Rev. 936, 938-942 (Lowenstein).) But our task is made simpler if the rule’s purpose of avoiding voter confusion and logrolling is kept in mind. Some have suggested that a provision is reasonably germane to the main subject of the initiative if it can be surmised that the public would consider it to be. (Uelman, Handling Hot Potatoes: Judicial Review of California Initiatives after Senate v. Jones (2001) 41 Santa Clara L.Rev. 999, 1009-1010; Lowenstein, supra, 30 UCLA L.Rev. at p. 973.) A variation on this formulation proposed by the California Commission on Campaign Financing is whether a “reasonable voter” would be “surprised” to learn that a specific provision being challenged was included in the initiative under question. (Cal. Com. on Campaign Financing Democracy by Initiative: Shaping California’s Fourth Branch of Government (1992) p. 330, fn. 97.) Moreover, as has been recognized, the single subject of the initiative must be expressed in the initiative’s title. (See Perry v. Jordan, supra, 34 Cal.2d at p. 93 ; see also California Trial Lawyers Assn. v. Eu (1988) 200 Cal.App.3d 351, 358 [ 245 Cal.Rptr. 916 ].) Thus, at the very least, an initiative should not pass muster under the single-subject rule unless its provisions are reasonably encompassed within the title and summary of the initiative. The inquiry is roughly analogous to a court’s inquiry into whether a party was unfairly surprised by a provision in a contract of adhesion, rendering that provision unconscionable. (See A & M Produce Co. v. FMC *588 Corp. (1982) 135 Cal.App.3d 473, 490-491 [ 186 Cal.Rptr. 114 ].) Moreover, the subject encompassed by the title and summary should be reasonably specific, not a broad, generic subject such as crime or public disclosure. (See Chemical Specialties Manufactures Assn., Inc. v. Deukmejian (1991) 227 Cal.App.3d 663, 670-671 [ 278 Cal.Rptr. 128 ].)

California Trial Lawyers Assn. v. Eu, supra, 200 Cal.App.3d 351 , illustrates the application of this test. There, an initiative that sought to establish a system of no-fault insurance with the purpose of lowering insurance rates also had a provision, section 8, guaranteeing to insurers and various other groups the same right to make campaign contributions as is given generally, and provided that state officials receiving such contributions would not be disqualified from “ ‘participating in any decision affecting the interest of the donor.’ ” (Id. at p. 356.) As the court stated: “In our view, section 8 of the initiative is a paradigm of the potentially deceptive combinations of unrelated provisions at which the constitutional limitation on the scope of initiatives is aimed. It is located . . . near the middle of a 120 page document, and consists of two brief paragraphs which bear no connection to what precedes or follows. . . . [¶] The significant threat that voters will be misled as to the breadth of the initiative is heightened by the absence of any reference to section 8 in the Attorney General’s title and summary, or in the introductory statement of findings and purpose in the initiative itself .... [N]ot only is there a lack of any reasonably discernible nexus between the stated object of the initiative and the campaign spending and conflict of interest provisions of section 8, but the title and various descriptions of the initiative’s contents give no clue that any such provisions are buried within. These flaws are fatal.” (Id. at pp. 360-361.)

Finally, in addition to the test discussed above, an initiative would pass muster under the single-subject rule if it were “functionally related in furtherance of a common underlying purpose.” (Schmitz v. Younger, supra, 21 Cal.3d at p. 100 (dis. opn. of Manuel, J.).) In Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 230-231 [ 149 Cal.Rptr. 239 , 583 P.2d 1281 ], in which Proposition 13 was upheld as constitutional, this test was employed along with the reasonably-germane test. (See also Brosnahan v. Eu (1982) 31 Cal.3d 1, 9 [ 181 Cal.Rptr. 100 , 641 P.2d 200 ] (dis. opn. of Mosk J.) [advocating adoption of the functionally-related test].) The functionally-related test would require that an initiative’s various measures be “reasonably interrelated and interdependent, forming an interlocking ‘package’ ” designed to accomplish the initiative’s purpose. (Amador Valley, supra, 22 Cal.3d at p. 231 .)

*589 II.

With these principles in mind, I turn to Proposition 21. I agree that the juvenile justice and gang-related provisions are reasonably germane to the single subject of preventing juvenile crime. The gang-related provisions would be popularly understood to be germane to the subject of juvenile crime since gang-related crime is often juvenile crime. This single subject is appropriately expressed in the title given by the Attorney General—“Juvenile Crime. Initiative Statute.” (Ballot Pamp., Primary Elec. (Mar. 7, 2000) p. 44.) It is also expressed in the title given by the drafters of the initiative, the “Gang Violence and Juvenile Crime Prevention Act of 1998.” (Id. at p. 119.) Moreover, these interrelated subjects are reasonably specific.

The third part of Proposition 21, concerning the amendment of the “Three Strikes” law by adding to the list of serious and violent felonies found in Penal Code sections 667.5 and 1192.7, presents a much closer question. As the majority correctly state: “The general object of the initiative is to address the problem of violent crime committed by juveniles and gangs—not simply to reduce crime generally.” (Maj. opn., ante, at pp. 575-576.) Although some of the crimes added to the Three Strikes law are clearly gang related—such as extortion or threats in connection with gang activity and intimidation of victims or witnesses—some have no apparent relationship with either juvenile or gang-related crime. I disagree with the majority’s argument that crimes such as first degree burglary or use of a firearm in connection with a felony are sufficiently related to the subject of juvenile and gang-related crime merely because some juveniles or gang members commit such crimes, even though the large majority of those committing these crimes are adults who are not members of gangs. Employing the popular-understanding test discussed above, it is highly doubtful that, for example, the general public would particularly associate first degree burglary with juveniles or gangs.

Moreover, the “significant threat that voters [were] misled as to the breadth of the initiative [was] heightened by the absence of any reference to [the provision] in the Attorney General’s title and summary, or in the introductory statement of findings and purpose in the initiative itself.” (California Trial Lawyers Assn. v. Eu, supra, 200 Cal.App.3d at p. 361 .) Nothing in the title of Proposition 21 would have placed voters on notice that it would be amending the Three Strikes law, nor that some of the amendments would have only an incidental connection with juvenile or gang-related crime. Nor do the arguments for and against Proposition 21 contain any mention of these provisions. (Ballot Pamp., Primary Elec. (Mar. 7, 2000) pp. 48-49.) Likewise, the findings and declarations contained in section 2, subdivision (d) of the law make no mention of these amendments, *590 instead focusing on the increasing “problem of youth and gang violence.” (Id. at p. 119.) The Attorney General’s summary does mention that the initiative “[designates additional crimes as violent and serious felonies, thereby making offenders subject to longer sentences.” (Id. at p. 44.) But because that mention comes after the title and after the portions of the summary specifically related to juvenile and gang-related crime, it is doubtful that this reference would have placed the average voter on notice that the “offenders” in question are not necessarily, and in some cases are not usually, juveniles or gang members.

To counter these arguments, the majority point to the more extensive description of the initiative in the Legislative Analyst’s summary and state, “ ‘We must assume the voters duly considered and comprehended these materials.’ ” (Maj. opn., ante, at p. 580.) But while it is to be hoped that voters carefully study their ballot guides, the realistic premise behind the single-subject rule is that many voters do not, and the ballot measures should be simple enough to be fairly well described in the title and summary. The less rigorously we enforce the single-subject rule, the more we are compelled to rely on implausible assumptions about voters’ understanding of a ballot measure’s intricacies.

This lack of notice to voters is especially troublesome because the Three Strikes law is itself a substantial and controversial piece of legislation, the amendment of which merits the careful attention of the voters. I note that there is currently circulating an initiative to amend the Three Strikes law so as to narrow the list of violent and serious felonies that will count as strikes. (See text of proposed initiative for Gen. Elec. Nov. 5, 2002, entitled “Three Strikes” Law. Limitation to Violent and Serious Felonies. Initiative Statute (Cal. Sec. of State, 2002 Initiative Update <http.www.ss.ca.gov/elections/ elections_j.htm> [as of Feb. 28, 2002].) There is therefore cause for concern that the amendments to the controversial Three Strikes law were tacked on to a popular anti-juvenile-crime initiative as a form of improper logrolling—a practice the single-subject rule was designed to prevent.

Nonetheless, I concur in the result because I agree that there is a functional relationship between the juvenile justice provisions and the amendment of Penal Code sections 667.5 and 1192.7. Welfare and Institutions Code section 1732.6, subdivision (a) provides that “[n]o minor shall be committed to the Youth Authority when he or she is convicted in a criminal action” of any of the violent or serious felonies set forth in the above two Penal Code sections. As the majority explains, Proposition 21 amends Welfare and Institutions Code section 1732.6 to add additional offenses, enumerated in Welfare and Institutions Code sections 602 and 707, under *591 which a minor would be precluded from being committed to the Youth Authority. But these amendments did not alter the role that Penal Code sections 667.5 and 1192.7 offenses have in determining which minors would not be committed to the Youth Authority.

In other words, a critical determination in the juvenile justice system— whether or not a minor will be committed to the Youth Authority or to prison—depends in part on the nature of the crimes defined by Penal Code sections 667.5 and 1192.7. In this sense, the amendment of these two statutes is also an amendment of Welfare and Institutions Code section 1732.6 and is therefore functionally related to the goal of the initiative—the reform of the juvenile justice system to impose greater punishment on some juveniles who have committed crimes. This interlocking, functional relationship between Welfare and Institutions Code section 1732.6 and Penal Code sections 667.5 and 1192.7, more than any tenuous topical connection, persuades me that the amendment of these latter two sections is fairly included in the subject of juvenile justice reform. For that reason, I conclude Proposition 21 does not violate the single-subject rule.