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
MORENO, J., Concurring.
I concur in the majority’s result, but would approach this case somewhat differently, explaining why Senate Constitutional Amendment No. 18 of the 2003-2004 Regular Session (Sen. Const. Amend. No. 18, Stats. 2004 (2003-2004 Reg. Sess.) res. ch. 103; hereafter Resolution 103) is not a partial constitutional revision, and, therefore, is not exempt from the separate-vote requirement. In doing so, I hope to clarify the meaning of article XVIII, section 1 of the California Constitution.
As recounted by the majority, prior to 1962, constitutional revisions, which had been characterized as “far reaching and multifarious” constitutional changes (McFadden v. Jordan (1948) 32 Cal.2d 330, 332 [ 196 P.2d 787 ]), could be made only by convening a constitutional convention. In 1962, article XVIII, section 1 of the California Constitution was amended through the passage of Proposition 7 to allow the Legislature, upon a two-thirds vote, to place revisions to the Constitution, as well as amendments, on the ballot, but the separate-vote requirement applied only to amendments, not revisions. Article XVIII, section 1 now provides: “The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately.”
On its face, the language of this provision is clear; each amendment to the Constitution must be voted on separately, but no such requirement applies to revisions of the Constitution. The application of this language, however, is problematic, because of the difficulty in distinguishing between multiple constitutional amendments, which must be voted on separately, and a constitutional revision, which may be approved in a single vote.
The California Constitution Revision Commission, formed shortly after the passage of Proposition 7, commented that “the Legislature, it seems, could easily get around the [separate-vote requirement] by the means of classifying the proposal as a revision. Consequently the provision as a limitation on the *787 power of the Legislature seems to be of little practical value, except as a caution.” (Cal. Const. Revision Com., Article XVIII, Amending and Revising the Constitution, Background Study 7 (May 1967) p. 19.) The commission formally recommended to the Legislature that the separate-vote provision be deleted “as ineffective because it can be circumscribed by entitling several amendments as a revision.” (Cal. Const. Revision Com., Proposed Revision of Cal. Constitution (Feb. 15, 1968) Com. on Revised Provisions, p. 109.) The Legislature rejected the commission’s proposal for reasons that are unclear.
From the above history, two things can be fairly deduced: the Legislature must have had some reason for retaining the separate-vote requirement and must have had some reason for applying that requirement to amendments but not revisions. What were those reasons? Or to ask the question another way, within the context of this case, is there anything to prevent the Legislature from combining amendments on two unrelated subjects into a single initiative and designating it as a “partial revision” exempt from the separate-vote requirement? If the answer is negative, then this case is quite simple. The proper remedy would have been, as the Legislature argued before the Court of Appeal, not the bifurcation of the two amendments found in the original Proposition 60, but rather the relabeling of that proposition as a partial constitutional revision.
One possible answer to the above questions is to maintain that there is no difference between two or more amendments and a revision other than the label, but the label itself is significant. This position is suggested by the majority’s observation, based on the record of failed constitutional revisions in 1968 and 1970, that the electorate was apparently reluctant “to adopt multisubject revisions titled as such . . . .” (Maj. opn., ante, at p. 757.) The term “revision,” so the argument would go, puts voters on notice that what they are voting on is a far-reaching constitutional change or changes. Thus, the “revision” label is likely to cause voters to scrutinize the measure more closely than they would an amendment, which would obviate the need for a separate-vote requirement designed to prevent voter confusion.
The problem with this argument is that it is based on an unfounded assumption. There is no indication that people, other than attorneys and others who realize that “revision” is a term of art, would be inclined to scrutinize an initiative more closely simply because it is termed a “revision” rather than an “amendment.” Indeed, the fact that the word “revision” is commonly used with the modifying adjectives “major” or “minor” indicates that the word by itself does not connote a far-reaching or consequential change. The failure of numerous proposed revisions at the ballot box was more likely the result of voters not wanting to vote for numerous constitutional changes in a block rather than because of the “revision” label.
*788 Another possible answer to the above questions is to take a conventional approach to distinguishing between revisions and amendments, as the Court of Appeal did below. This approach can be found in cases addressing challenges to voter initiatives. Voters can propose amendments to the Constitution that will be placed on the ballot if the requisite number of signatures are obtained, but they may not propose constitutional revisions. (See Cal. Const., art. XVIII, § 3; Raven v. Deukmejian (1990) 52 Cal.3d 336, 349 [ 276 Cal.Rptr. 326 , 801 P.2d 1077 ].) In addressing challenges to voter initiatives on the grounds that they are unconstitutional revisions, we have recognized that revisions “refer to a substantial alteration of the entire Constitution.” (Amador Valley Joint Union High Sch. Dist. v. State Board of Equalization (1978) 22 Cal.3d 208, 222 [ 149 Cal.Rptr. 239 , 583 P.2d 1281 ].) As we elaborated: “our analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.” (Id. at p. 223; see also Raven v. Deukmejian, supra, 52 Cal.3d at pp. 350-352.) Under this conventional approach, the two different amendments found in Resolution 103 are neither qualitatively so extensive nor quantitatively so far-reaching as to constitute a constitutional revision. Indeed, courts have been reluctant to find that even multiple significant constitutional changes combined into a single voter initiative constitute a revision. (See, e.g., Brosnahan v. Brown (1982) 32 Cal.3d 236, 242-243, 260-261 [ 186 Cal.Rptr. 30 , 651 P.2d 274 ] [Proposition 8, making constitutional changes in the areas of criminal restitution, safe schools, admissibility of relevant evidence, bail, and use of prior felony convictions for impeachment and sentencing purposes, is not a constitutional revision].)
The problem with this conventional approach is that it does not make a great deal of sense in the context of legislative proposed revisions. When labeling a voter initiative or part thereof as a “revision” has the consequence of invalidating the initiative because the revision could only have been proposed by a constitutional convention, then it is appropriate to set the bar for what constitutes a revision very high in order to give the electorate considerable scope to amend the Constitution. Because the Legislature now adopts constitutional amendments and constitutional revisions by the identical method, however, there would appear to be no purpose in so strictly confining the Legislature’s ability to label' a proposal a constitutional “revision.” Indeed, strict limitations on the Legislature’s ability may frustrate the purpose of legislatively proposed revisions, discussed at greater length below, of *789 allowing disparate constitutional amendments to be placed in the same initiative in order to accomplish efficient constitutional reform.
In order to fathom the reason for retaining the separate-vote requirement, while not applying it to revisions, it is necessary first to understand the purposes behind the separate-vote requirement. As the majority states, the separate-vote requirement shares with the single subject rule the “purpose of preventing voter confusion and ‘logrolling’—that is, the practice of combining in one measure two or more unrelated provisions, thereby forcing a single vote on matters that properly should be voted upon separately.” (Maj. opn., ante, at p. 765.) These are two distinct rationales. Voter confusion occurs when, for example, numerous provisions are included in a single ballot measure, thereby making it unclear that voters actually are aware of all the provisions they are voting on. (See Manduley v. Superior Court (2002) 27 Cal.4th 537, 584, 589-589 [ 117 Cal.Rptr.2d 168 , 41 P.3d 3 ] (conc. opn. of Moreno, J.).) With logrolling, voters may very well know what they are voting for, but are compelled to vote for a measure they might not otherwise support in order to pass an unrelated measure that is important to them. (See Gabbert v. C., R. I. & P. Ry. Co. (1902) 171 Mo. 84 [ 70 S.W. 891, 897 ] [defining logrolling as combining in one initiative “ ‘subjects diverse and antagonistic in their nature, in order to combine in its support members who were in favor of a particular measure’ ”, italics omitted].)
To understand why the separate-vote requirement would apply to amendments and not revisions, we must also better discern the purpose of a legislatively proposed constitutional revision. The argument in favor of Proposition 7, authorizing such revisions for the first time, stated: “Most state legislatures are free to propose to the people extensive and significant constitutional changes, whether drawn up by an expert commission or a legislative committee. In the past decade alone ten states, among them New York, Pennsylvania and Texas, have approached constitutional improvement by this method. Short of a constitutional convention, California has no way to make coordinated broad changes to renovate outdated sections and articles in its Constitution.” (Ballot Pamp., Gen. Elec. (Nov. 6, 1962) argument in favor of Prop. 7, p. 13.)
A legislatively proposed revision is therefore a means of “constitutional improvement,” designed to “make coordinated broad changes to renovate outdated sections and articles [in the] Constitution.” (Ballot Pamp., Gen. Elec. (Nov. 6, 1962) argument in favor of Prop. 7, p. 13.) Behind Proposition 7 there appears to have been the perception that the California Constitution was out of date and in need of major renovations. Making those renovations by means of piecemeal amendments, each subject to the separate-vote requirement, would be time consuming and inefficient. Indeed, the report by *790 the Citizens Legislative Advisory Committee that initially recommended legislative constitutional revision recognized that “[t]he California Constitution is in need of a fundamental review” and that article-by-article revision would be inadequate to the task. (Advisory Com., Final Rep. to Cal. Leg. and Citizens of Cal. (Mar. 1962), pp. 39, 42-43.) As the history recounted in the majority opinion explains, the Legislature endeavored to systematically reform the Constitution in the wake of Proposition 7’s passage, creating the California Constitution Revision Commission to generate proposed revisions consisting of numerous, often unrelated constitutional amendments. (See maj. opn., ante, at pp. 753-758.)
Given the above purpose, it is easy to understand why the separate-vote requirement would not apply to revisions. That requirement would defeat the very purpose behind a legislatively proposed constitutional revision—to permit the California Constitution to be efficiently overhauled by allowing the Legislature to put before voters packages of unrelated amendments. Although combining such unrelated amendments into one initiative may result in some risk of voter confusion, it appears evident that those enacting Proposition 7 believed the benefits of legislatively proposed revisions outweighed those risks.
Does that mean that by not applying the separate-vote requirement to legislative constitutional revisions, those who enacted Proposition 7 also intended to condone logrolling by the Legislature in the revision process? I do not believe so. A constitutional revision, by its very nature and purpose— systematic, comprehensive constitutional renovation and reform—appears to be inherently contrary to the practice of logrolling motivated by political expediency.
Therefore, although we cannot claim to comprehensively define the meaning of “constitutional revision,” we can say with some assurance what it is not. It does not include an initiative consisting of multiple constitutional changes joined together for purposes of logrolling. And although we cannot ever know precisely why the Legislature of almost 40 years ago decided to retain the separate-vote requirement but not apply it to revisions, we can at least understand post hoc why that decision was reasonable: It allowed the Legislature considerable freedom in proposing constitutional reform packages in the form of revisions, while still banning the practice of log-rolling— explicitly in the case of constitutional amendments, implicitly in the case of constitutional revisions, whose very purpose and pedigree are inimical to such a practice.
Of course, the legislative purpose behind a proposed revision may not always be evident. But as suggested by the history recounted in the majority *791 opinion and by the ballot argument for Proposition 7, evidence of a constitutional revision’s bona tides is generally readily available. The ballot argument, invoking the constitutional revision process in other states, described it as “extensive and significant constitutional changes, whether drawn up by an expert commission or a legislative committee.” (Ballot Pamp., Gen. Elec. (Nov. 6, 1962) argument in favor of Prop. 7, p. 13, italics added.) The history of constitutional revision in this state, as described by the majority, involved such an expert commission, the California Constitution Revision Commission. Thus, a revision, as contemplated by those who drafted and enacted Proposition 7, is typically the product of the study and deliberation of a constitutional revision commission or equivalent commission or legislative committee, which reports to the Legislature with proposals that the latter then accepts, rejects or modifies. While such reports are not necessarily a prerequisite to a constitutional revision, they will generally indicate that the package of amendments is being proposed for purposes other than political expediency. And while the origins of voter-proposed initiatives are not always transparent, the origins of legislatively sponsored initiatives are typically made clear in such reports.
Turning to the present case, I will assume without deciding that a legislative initiative that proposes changes in only two subjects could under some circumstances be termed a “partial revision” exempt from the separate-vote requirement. Nonetheless, I conclude that Resolution 103 is not a bona fide partial revision because its evident purpose was logrolling. It was not the product of a study and deliberation by a commission or committee. Indeed, the Legislature does not dispute Californians for an Open Primary’s characterization that Resolution 103 was rushed through the Legislature in response to Proposition 62, an open primary initiative. Resolution 103 offered changes on two unrelated subjects, one of which was the primary object of its proponents—the classic logrolling situation. (See, e.g., Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1160 [ 90 Cal.Rptr.2d 810 , 988 P.2d 1089 ].) The Legislature has not claimed otherwise. Therefore, I would conclude that Resolution 103 could not have been redesignated as a partial revision.
I have been critical of what in my view is an overly lenient interpretation of the single subject rule as applied to voter initiatives. (See Manduley v. Superior Court, supra, 27 Cal.4th 537, 585-588 (conc. opn. of Moreno, J.).) Because the Legislature has the freedom to propose constitutional revisions unconstrained by the separate-vote requirement, there is good reason to suppose, as suggested by the above discussion, that the separate-vote requirement should be interpreted more leniently than the single subject rule. But even so, that freedom has its limits, which the Legislature crossed in the present case.
*792 Furthermore, I agree with the majority that bifurcation of the two measures encompassed by Resolution 103 was improper. Nonetheless, given the unique circumstances of this case, I also agree with the majority that invalidation of those measures at this point would be inappropriate.