Taxpayers to Limit Campaign Spending v. Fair Political Practices Commission

MOSK, J., Concurring and Dissenting.

I concur with qualifications. Therefore, I write separately to point out some additional problems in interpreting competitive initiatives that purportedly create a “comprehensive regulatory scheme related to the same subject.”

In construing a statute, our overarching duty is to effectuate the lawmakers’ intent, be they the electorate in the case of an initiative or, otherwise, members of the Legislature. (In re Lance W. (1985) 37 Cal.3d 873, 889 [ 210 Cal.Rptr. 631 , 694 P.2d 744 ].) In the case of an initiative, the ballot arguments are one source from which the electorate’s intent may be gleaned. (See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245-246 [ 149 Cal.Rptr. 239 , 583 P.2d 1281 ].)

While ballot arguments that are mere appeals to passion on emotionally charged topics of public policy illuminate the electorate’s intent feebly if at *772 all (In re Lance W., supra, 37 Cal.3d at p. 906, fn. 5 [dis. opn. of Mosk, J.]), in this case the proponents of each initiative—in particular Proposition 68’s partisans—expressly asked the voters to choose between them. (Maj. opn., ante, pp. 754, 769.) Less significant than the ballot arguments, the identical numbering of proposed sections with different content supports the view that the measures were offered expressly as alternatives. (Maj. opn., ante, p. 754.) Thus, the election results do not allow us to presume that a majority wanted both measures to pass. In these circumstances, to patch together the nonconflicting provisions of measures that were expressly offered in opposition to each other would usurp the legislative role, creating, in the worst scenario, a Frankenstein’s monster whose existence the voters never contemplated.

Hence, under the facts of this case I believe the majority reach the correct result. As my colleagues note elsewhere, the two measures not only were competing regulatory schemes, but were offered as such. (Maj. opn., ante, pp. 765, 767.) Although the majority do not include the qualifying verb “offer” in each statement of the conclusion that only the higher votegetter of two competing initiatives is to be given effect, that qualification should be read into our conclusion wherever it appears because the case before us involved explicit invitations to choose between competing schemes.

The majority further imply, however, that today’s holding might apply even if an initiative’s opponent attempts to defeat it by placing a simpler but conflicting measure on the same ballot, whether or not the measures announce that they conflict. (Maj. opn., ante, p. 770.) I am troubled by a possible consequence of that suggestion: In my view, the implications of the majority’s language are broad enough to allow an initiative designed solely to sabotage another measure through deception to achieve its aim.

It is a sad fact of democratic life that many voters have neither the time nor the will to scrutinize a measure’s contents in the detail needed to discern a conflict not squarely presented in the ballot arguments or title. (See maj. opn., ante, p. 770; see also In re Lance W., supra, 37 Cal.3d at p. 910 [dis. opn. of Mosk, J.].) An opponent could take advantage of this reality to offer the voters a competing initiative that artfully conceals its true aim by failing to declare its opposition to the target initiative in materials the voter can readily comprehend. 1 When an initiative is thus designed to *773 clandestinely sabotage another, and succeeds in receiving a greater popular vote, I do not believe we can presently say that the voters’ true desires will be implemented by giving it effect and entirely discarding the target. Fortunately, this question is not before us now and we do not decide it today. 2

Though the majority cursorily mention the subject in a footnote, they adopt an ostrich-like approach to recent developments in the real world concerning the fate of Proposition 73. A federal district court declared the significant portions of the measure to be violative of the First Amendment of the United States Constitution, and enforcement of the provisions was permanently restrained. (Service Employees v. Fair Political Practices (E.D.Cal. 1990) 747 F.Supp. 580 .) Petitions to stay the district court restraining order were denied by the Ninth Circuit, by Justice O’Connor of the United States Supreme Court, and by Chief Justice Rehnquist on behalf of the entire Supreme Court.

While the underlying appeal to the Ninth Circuit has not been heard, restraint against enforcement of the significant provisions of Proposition 73 is in full force and effect. Thus an unequivocal holding that Proposition 73 prevails over Proposition 68 contains an element of practical futility at this writing.

It can be argued that the federal district court did not invalidate the entire Proposition 73, but only three provisions thereof. However, the undeniable fact is that the court order dealt with the significant portions of the proposition, its raison d’etre, the issues on which voters’ approval was sought. The measure purported to add chapter 5 to title 9 of the Government Code. The chapter was entitled “Limitations on Contributions.” That is the very subject with which the federal court dealt.

The new chapter consisted of three articles. The first contained definitions. The second article referred to the amounts of campaign contributions that can be accepted, as provided in the third article. The third article contained the limitations on amounts and on the transferring of funds from one candidate to another.

*774 There are no other significant provisions in Proposition 73 except for a prohibition against public funding, a practice we do not have and have never had. If the district court’s order is ultimately upheld, there are no aspects of the proposition that will survive for enforcement.

The foregoing status imprecision renders any current action by this court quixotic at best. We can declare as a general principle, with which I agree, that when two ballot propositions asserting a comprehensive regulatory scheme relating to the same subject are passed by the voters, that measure with the greatest majority shall prevail. To that concept, however, I would add this qualification: the principle applies only when both competing proposals are constitutionally valid. A dead horse cannot win a race. If one proposition is ultimately declared invalid, the other necessarily prevails by default.

In short, I fear that due to the uncertainty caused by federal proceedings not yet final, we are today rendering a mere advisory opinion. It is an opinion with which I have no quarrel if it is read with the qualification recited above.

In the case of two simple initiatives dealing with an easily understandable issue, the conflict may be clear even if not underscored in the ballot arguments. Not so, however, when the words of either the target or the Trojan horse initiative, or the subject matter itself, are difficult for most voters to understand. Examples would be initiatives that deal with voir dire examination, the rule against perpetuities or other arcane legal principles.

The majority suggest that the answer to abuses of the initiative process is “presentation at a subsequent election of a new initiative measure which the voters can consider in light of the scheme established by the measure that prevailed in the earlier election.” (Maj. opn., ante, p. 769.) Perhaps so, if the competing initiatives clearly offer themselves as alternatives; but if one is a Trojan horse, we may later wish to apply a different rule. In any event I read the quoted words as precatory and not necessarily applicable in the case of an initiative designed only to torpedo another without the electorate’s awareness.