explaining that the Armatta approach was “an essentially dormant minority position until the Supreme Court of Oregon—without citing any of them or acknowledging the majority rule cases discussed above—revived this strict interpretation of the separate-vote provision in 1998.”
How later courts described this case
- explaining that the Armatta approach was “an essentially dormant minority position until the Supreme Court of Oregon—without citing any of them or acknowledging the majority rule cases discussed above—revived this strict interpretation of the separate-vote provision in 1998.”
- analyzing but rejecting a “test different from and stricter than the traditional test” for single subject violations (emphasis omitted)
- “Indeed, in the few other jurisdictions that recently have embraced (explicitly or implicitly
- describing the 1950s-1960s history relating to the 1966 recommendations of the Commission
Written by the judges who cited it.
The opinion
WERDEGAR, J., Concurring.
I concur in the judgment remanding the matter to the Court of Appeal with directions to discharge the alternative writ and to deny the request that a peremptory writ issue to invalidate Propositions 60 and 60A. I write separately to express my views concerning the propriety of addressing the validity of the bifurcated propositions postelection. As I shall explain, I believe the question of the validity of the enacted measures is moot, either because the Legislature’s violation of California Constitution article XIII, section 1 was a procedural irregularity only or, if a substantive violation, this court has before it no pleading requesting declaratory relief.
I. Procedural irregularity
“ ‘[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for [the appellate] court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever,’ ” the appeal is moot. (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863 [ 167 P.2d 725 ]; accord, e.g., Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503 [ 1 Cal.Rptr.3d 207 ] [“A case becomes moot when a court mling can have no practical impact or cannot provide the parties with effective relief’].) 1 Petitioners in the present case sought “a writ of prohibition in the Court of Appeal, seeking to bar the Secretary of State from placing Proposition 60 on the [November 2, 2004] general election ballot.” (Maj. opn., ante, at p. 740.) The election having been held, such a writ cannot issue. Thus the only relief for which petitioners pleaded, exclusion of Proposition 60 from the ballot, can no longer be granted, and their case is moot.
*784 We faced an analogous situation in Lenahan v. City of Los Angeles (1939) 14 Cal.2d 128 [ 92 P.2d 1014 ] (Lenahan), in which the plaintiffs, alleging defects in the manner in which petition signatures for a recall election had been collected, sought and were denied an injunction against holding the election. Reviewing the case after the election, this court dismissed the plaintiffs’ appeal as moot: “It appears beyond question that every act sought to be enjoined has actually taken place. The election has been held and it is not even intimated that any of the alleged deficiencies or irregularities in the presentation and certification of the recall petition prevented a full and fair vote at the recall election. . . . The nature of the action was such that when the injunctive relief therein sought was rendered inappropriate and ineffective, any further consideration of the cause as an action in injunction would be unavailing. . . . Certainly they [the plaintiffs] may not, after the election has been held, still urge a court to stop it.” (Id. at p. 132.)
Our courts have repeatedly followed the reasoning of Lenahan , applying it to referenda as well as recalls and to writ petitions as well as actions for injunctive relief. Where the plaintiffs have challenged only the procedures leading to the recall election or to the placement of the referendum measure on the election ballot, and sought only to prevent the election or remove the measure from the ballot, the election’s actual occurrence has been considered to render the case moot. (See Mapstead v. Anchundo (1998) 63 Cal.App.4th 246, 273-277 [ 73 Cal.Rptr.2d 602 ]; Chase v. Brooks (1986) 187 Cal.App.3d 657, 661-662 [ 232 Cal.Rptr. 65 ]; Long v. Hultberg (1972) 27 Cal.App.3d 606, 608-609 [ 103 Cal.Rptr. 19 ].) And, as this court recently recognized in Costa v. Superior Court (2006) 37 Cal.4th 986 [ 39 Cal.Rptr.3d 470 , 128 P.3d 675 ], the principle is equally applicable to initiative measures. Discussing challenges that attempt to keep a measure off the ballot on the basis of a procedural defect “hav[ing] no effect on the material that is before the voters or on the fairness or accuracy of the election result,” the Costa majority, citing Lenahan and its progeny, explained that such procedural challenges are properly decided before the election, “because after the election the procedural claim may well be considered moot.” (Id. at pp. 1006-1007; see also id. at pp. 1038-1039 (conc. & dis. opn. of Werdegar, J.).) No reason is apparent why this principle, applicable to recall elections, referenda and initiative measures, should not also apply to a legislatively proposed constitutional amendment.
The critical challenge to Propositions 60 and 60A in this court— petitioners’ contention that the Court of Appeal erred in bifurcating the measures as a remedy for the Legislature’s separate-vote violation—is seemingly a purely procedural one that does not affect the material before the voters or the fairness of the election. As the majority opinion explains, bifurcation was an improper remedy because “neither of [the bifurcated measures], standing alone, had received the approval of two-thirds of each house of the *785 Legislature as required by the first sentence of the first section of article XVIII [of the California Constitution].” (Maj. opn., ante, at p. 780.) Nevertheless, the two measures, as the majority observes, were separately approved by the voters, who received separate analyses and arguments on each. There is no suggestion that bifurcation “prevented a full and fair vote at the . . . election” itself. (Lenahan, supra, 14 Cal.2d at p. 132 .)
II. Substantive invalidity
Contrary to the foregoing, the majority denies the case is moot. Whether the majority believes the violation in this case does or could affect the substantive validity of Propositions 60 and 60A is unclear. But while I agree postelection invalidation of a measure is appropriate when the challenge goes to its substantive validity (Costa v. Superior Court, supra, 37 Cal.4th at pp. 1005-1006), in this case even a substantive challenge would not be justiciable postelection because petitioners did not plead for invalidation. The majority correctly observes petitioners have requested, in their postelection brief, that this court declare Propositions 60 and 60A invalid on the ground that invalidation is the appropriate remedy for the Legislature’s violation of article XIII, section 1 of the California Constitution. (Maj. opn., ante, at p. 742.) But the majority cites no authority suggesting a party’s request can substitute for a formal pleading seeking declaratory relief, and I doubt it can. I question whether a plaintiff would, for example, be permitted to convert an action for injunctive relief, rendered moot by events occurring during the appeal, into a damages action merely by requesting an award of damages in his or her appellate brief.
While denying the case is moot, the majority concludes invalidation of the two approved measures would be “inappropriate.” (Maj. opn., ante, at p. 782.) What legal rule, if any, the majority articulates on this point—the only part of its opinion actually necessary to the judgment—is unclear, but I agree it would be “inappropriate”—indeed, erroneous—to grant petitioners on review relief beyond and different from that for which they pleaded.
Our legal inability to provide the relief actually pleaded for, a writ of prohibition against placing the disputed measures on the ballot, renders the action moot under Lenahan and its progeny. Under our previously announced principles of justiciability, the case is moot because “the controversy which the plaintiffs attempted to raise by the filing of their [writ petition] has, by reason of the subsequent election, faded into insubstantiality.” (Lenahan, supra, 14 Cal.2d at p. 134 .)
III. Conclusion
We may proceed to decide the issues in a moot case where those issues are “ ‘of continuing public interest and are likely to recur.’ ” (Cadence Design *786 Systems, Inc. v. Avant! Corp. (2002) 29 Cal.4th 215, 218, fn. 2 [ 127 Cal.Rptr.2d 169 , 57 P.3d 647 ]; People v. Eubanks (1996) 14 Cal.4th 580, 584, fn. 2 [ 59 Cal.Rptr.2d 200 , 927 P.2d 310 ].) I would, however, use this power sparingly in election cases; the court should not, by deferring decision on procedural challenges to ballot measures until after the election, avoid its duty to decide such election law disputes when effective relief can still be granted. As challenges to the procedures by which a measure is placed on the ballot will generally become moot after the election even if the measure is approved, the court should, whenever possible, decide such challenges before the election.
The same is true in the trial court: “ ‘[Although a case may originally present an existing controversy, if before decision it has, through act of the parties or other cause, occurring after the commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court.’ ” (Wilson v. L. A. County Civil Service Com. (1952) 112 Cal.App.2d 450, 453 [ 246 P.2d 688 ].) As the present action is one for an original writ in the Court of Appeal, it may technically be said to have become moot not on appeal but in the court of original jurisdiction.