HOWARD JARVIS TAXPAYERS ASSOCIATION v. BOWEN






Filed 1/27/2011





CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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HOWARD JARVIS TAXPAYERS ASSOCIATION et al., Plaintiffs and Appellants, v. DEBRA BOWEN, as Secretary of State, etc., Defendant and Respondent; GEOFF BRANDT, as State Printer, etc., et al., Real Parties in Interest and Respondents.

C060441 (Super. Ct. No. 34200880000048CUWMGDS)

APPEAL from a judgment of the Superior Court of Sacramento County, Michael P. Kenny, Judge. Reversed.
Trevor A. Grimm, Jonathan M. Coupal, and Timothy A. Bittle, for Plaintiffs and Appellants.
David L. Lewellyn, Jr., Amicus Curiae, for Plaintiffs and Appellants.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Jonathan K. Renner, Senior Assistant Attorney General, Stephen P. Acquisto and Ross C. Moody, Deputy Attorneys General for Defendant and Respondent Secretary of State, Respondents and Real Parties in Interest Geoff Brandt, State Printer, and Edmund G. Brown Jr., and Kamala D. Harris, Attorneys General.

Diane F. Boyer-Vine, Robert A. Pratt, Marian M. Johnston, for Real Party in Interest and Respondent California State Legislature.

California voters have a powerful tool, the ballot initiative, to make public policy. (Cal. Const., art. II, § 8, subd. (a) [“The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them”], art. IV, § 1 [“The legislative power of this State is vested in the California Legislature . . . but the people reserve to themselves the powers of initiative and referendum”].)
Indeed, it was by a ballot initiative, Proposition 9, that voters adopted the Political Reform Act of 1974 to address, among other things, potential abuse of the very process by which voters adopted Proposition 9. (Gov. Code, §§ 81000, et seq.; further section references are to the Government Code unless otherwise specified.)[1]
The purposes to be accomplished by the Political Reform Act are set forth in section 81002, including subdivision (d), which provides: “The state ballot pamphlet should be converted into a useful document so that voters will not be entirely dependent on paid advertising for information regarding state measures.”
To this end, the Political Reform Act’s section 88002 requires that, for “each state measure to be voted upon,” the ballot pamphlet must contain certain information, including a ballot “title” (§ 88002, subd. (a)(1)) and an “official summary prepared by the Attorney General” (§ 88002, subd. (a)(2)).[2] Other statutes in existence when the Political Reform Act was adopted require that, like the official summary, the “ballot title” must be prepared by the Attorney General (form. Elec. Code, §§ 3530, 3531 [Stats. 1961, ch. 23, p. 625]; now Elec. Code, §§ 303.5, 342, 9004, 9005, 13282) and that, consistent with the Political Reform Act’s finding that public officials “should perform their duties in an impartial manner” (§ 81001, subd. (b)), the Attorney General, “[i]n providing the ballot title and summary, . . . shall give a true and impartial statement of the purpose of the measure in such language that the ballot title and summary shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.” (Form. Pol. Code, § 1197, subd. (3) [Stats. 1913, ch. 631, § 1, pp. 1160], now Elec. Code, § 9051.) Also in existence when the Political Reform Act was adopted was the requirement that the “ballot label for measures to be voted on throughout the State shall be composed by the Attorney General and shall be a condensed statement of the ballot title prepared by [the Attorney General].” (Form. Elec. Code, § 14934 [Stats. 1961, ch. 23, p. 782]; now see Elec. Code, § 13282.)
In this case, we deal not with an initiative measure, but with another “state measure” that must be approved by voters, namely, a “measure [passed by the Legislature] providing for the preparation, issuance and sale of bonds of the State of California [which then must] be submitted to the electors in the form of a bond act or statute.” (Cal. Const., art. XVI, § 2, subd. (a).)
The question posed is whether, in enacting the “Safe, Reliable, High-Speed Passenger Train Bond Act for the 21st Century” to submit the measure to voters as Proposition 1A at the November 4, 2008 general election, the Legislature acted lawfully when it specified the ballot label, title and summary to be used and precluded the Attorney General from revising the language other than to include a financial impact statement. (Stats. 2008, ch. 267, § 11, subd. (f)(1) & (2), pp. 15-16.)
The answer is “No.” The Political Reform Act may be amended in two ways: (1) “to further its purposes” if the amendment is passed in each house of the Legislature by a two-thirds vote (Gov. Code, § 81012, subd. (a)); or (2) by the enactment of a statute that is then approved by the electorate (Gov. Code, § 81012, subd. (b)). The Legislature passed the “Safe, Reliable High-Speed Passenger Train Bond Act for the 21st Century” by a two-thirds vote of each house. However, to the extent it specified the ballot label, title and summary to be used, the bill negated the Political Reform Act’s requirement that the official summary of the bill be prepared by the Attorney General in addition to the ballot label and title that are prepared by the Attorney General. As we will explain, this ad hoc amendment of the Political Reform Act did not further the purposes of the Act and was not approved by the voters. Thus, it was invalid. Simply stated, the Legislature cannot dictate the ballot label, title and official summary for a statewide measure unless the Legislature obtains approval of the electorate to do so prior to placement of the measure on the ballot.
DISCUSSION
I
Assembly Bill No. 3034, the “Safe, Reliable High-Speed Passenger Train Bond Act for the 21st Century” (Stats. 2008, ch. 267, § 9, p. 5 (hereafter “High-Speed Train Bond Act”), provided for the issuance of $9.95 billion of general obligation bonds, $9 billion of which would be available, along with any available federal and private funds, for the planning and construction of a high-speed train system to connect California’s major metropolitan areas, and $950 million of which would be available for capital projects on other passenger rail lines connecting to the high-speed train system. (Id. at pp. 5-15.) The measure was passed by a two-thirds vote of the Legislature, was approved by the Governor on August 26, 2008, and was submitted to the Secretary of State that same day. (Stats. 2008, ch. 267, p. 1 (introductory headings).) As required by article XVI, section 2, subdivision (b) of California’s Constitution, the measure would not be effective unless approved by the voters.
The Legislature placed the measure on the November 4, 2008 general election ballot (Stats. 2008, ch. 267, §§ 10 & 11, p. 15) “notwithstanding the requirements of Sections 9040 [which states a bond measure “shall appear on the ballot of the first statewide election occurring at least 131 days after the adoption of the proposal by the Legislature (italics added)], 9043 [time for submission of arguments prepared by legislators], 9044 [time for submission of arguments by voters], and 9061 [time for mailing press release] of the Elections Code or any other provision of law.” (Stats. 2008, ch. 267, § 11, subd. (a), p. 15.) The Legislature also specified that, “[n]otwithstanding Sections 13115 and 13117 of the Elections Code [specifying the order in which measures will appear on the ballot],” the High-Speed Train Bond Act “shall be placed as the first ballot measure . . . and shall be designated as Proposition 1A.” (Stats. 2008, ch. 267, § 11, subd. (b), p. 15.)
In addition, the Legislature required that, “[n]otwithstanding any other provision of law, all ballots of the November 4, 2008, general election shall have printed thereon as the ballot label for Proposition 1A the following:
“‘SAFE, RELIABLE HIGH-SPEED PASSENGER TRAIN BOND ACT. To provide Californians a safe, convenient, affordable, and reliable alternative to driving and high gas prices; to provide good-paying jobs and improve California’s economy while reducing air pollution, global warming greenhouse gases, and our dependence on foreign oil, shall $9.95 billion in bonds be issued to establish a clean, efficient high-speed train service linking Southern California, the Sacramento/San Joaquin Valley, and the San Francisco Bay Area, with at least 90 percent of bond funds spent for specific projects, with federal and private matching funds required, and all bond funds subject to independent audits‌’” (Stats. 2008, ch. 267, § 11, subd. (c), pp. 15-16.)
The Legislature also specified that, “[n]otwithstanding any other provision of law, the Secretary of State shall use the following as the ballot title and summary for Proposition 1A:
“‘SAFE, RELIABLE HIGH-SPEED PASSENGER TRAIN BOND ACT. [¶] Provides long-distance commuters with a safe, convenient, affordable, and reliable alternative to driving and high gas prices. [¶] Reduces traffic congestion on the state’s highways and at the state’s airports. [¶] Reduces California’s dependence on foreign oil. [¶] Reduces air pollution and global warming greenhouse gases. [¶] Establishes a clean, efficient 220 MPH transportation system. [¶] Improves existing passenger rail lines serving the state’s major population centers. [¶] Provides for California’s growing population. [¶] Provides for a bond issue of $9.95 billion to establish high-speed train service linking Southern California counties, the Sacramento/San Joaquin Valley, and the San Francisco Bay Area. [¶] Provides that at least 90% of these bond funds shall be spent for specific construction projects, with federal and private sector matching funds required. [¶] Requires that use of all bond funds is subject to independent audits. [¶] Appropriates money from the General Fund to pay bond principal and interest.’” (Stats. 2008, ch. 267, § 11, subd. (f)(1), p. 16.)
And the Legislature required that, “[n]otwithstanding Sections 13247 [limitation on total number of words in the ballot statement, and title, and financial impact summary] and 13281 of the Elections Code [former statute specifying the Attorney General shall prepare the ballot label and title] or “any other provision of law,” the above-quoted ballot title and summary “shall be the only language” included on the ballot as the ballot label, title and summary for Proposition 1A, and “the Attorney General shall not supplement, subtract from, or otherwise revise that language,” except for providing a financial impact summary. (Stats. 2008, ch. 267, § 11, subds. (d) & (f)(2), p. 16.)
II
Prior to the 2008 general election, the Howard Jarvis Taxpayers Association and taxpayer Kris Vosburgh (appellants) petitioned the superior court for a writ of mandate directing the Secretary of State to “request an impartial Ballot Label, Title and Summary from the Attorney General, and to use them in lieu of the Ballot Label, Title and Summary furnished by the Legislature.”
Appellants asserted that the Legislature violated article II, section 4 of California’s Constitution by “attempting to influence the election with its own one-sided Ballot Label, Title, and Summary.” According to appellants, “the Legislature, as author and proponent of Proposition 1A, has a conflict of interest in preparing an impartial Ballot Label, Title, and Summary,” and “the Label, Title, and Summary it prepared for Proposition 1A are, in fact, not impartial,” but rather “resemble campaign literature, containing nonfactual opinion and statements that are false or misleading.”
In the alternative, appellants asked the court to direct the Secretary of State “to strike from the Legislature’s Ballot Summary the sentence: ‘Provides that at least 90% of these bond funds shall be spent for specific construction projects, with federal and private sector matching funds required’ [citation], and the similar phrase in the Legislature’s Ballot Label: ‘with at least 90 percent of bond funds spent for specific projects, with federal and private matching funds required’ [citation].”[3] According to appellants, these statements were “false or misleading” and should be stricken. (See Elec. Code, § 9092 [a peremptory writ of mandate may issue to strike language shown by clear and convincing proof to be false or misleading].)
Opposing the petition, the Legislature, as real party in interest, argued that “the authority to designate the author of the ballot materials of a measure placed by the Legislature before the voters rests with the Legislature, and the Legislature’s assignment of this responsibility to itself was completely within its discretion.” It further asserted that the specific statements sought to be stricken were neither false nor misleading, and thus should not be deleted from the ballot materials.
Saying it “declines to read into the Constitution’s general terms a specific requirement that Legislature-drafted ballot information must be totally impartial,” the superior court rejected the request to order the Secretary of State to obtain substitute ballot materials from the Attorney General. But the court ordered that the ballot summary of Proposition 1A be modified to state: “Provides that at least 90% of these bond funds shall be spent for specific construction projects, with private and public matching funds required, including, but not limited to, federal funds, funds from revenue bonds, and local funds. (Emphasis indicates modification.) A similar modification was ordered to the ballot label of Proposition 1A.
Proposition 1A passed by a slim margin on election day. (See Statement of Vote (Nov. 4, 2008) Gen. Elec. .)
III
We begin our analysis by rejecting the Legislature’s contention that this appeal should be dismissed as moot because “the election is over, and the bond measure has been approved by the voters.”
Appellant sought the issuance of a writ of mandate directing the Secretary of State to request a substitute ballot label, title and summary from the Attorney General, and to print them in the general election ballot pamphlet. The passage of Proposition 1A makes this “a meaningless remedy.” (See Gebert v. Patterson (1986) 186 Cal.App.3d 868, 872.)
Appellants acknowledge that they “are not asking to have the election invalidated or issuance of the bond enjoined.” Rather, they “simply want this Court to determine whether the Superior Court erred by not issuing a writ directing the Legislature, in light of its conflict of interest, to have the Attorney General or another disinterested party write the impartial materials for the voters.”
As appellants correctly point out, this appeal challenges a practice that has been used by the Legislature with increasing frequency in recent elections[4] and “is likely to recur in future elections, yet evade review due to the short deadline for printing ballots.” We also agree with appellants that this appeal involves a matter “of continuing public interest.” Consequently, we exercise our discretion to address the merits of the appeal. (Huening v. Eu (1991) 231 Cal.App.3d 766, 770 [even if the relief sought in the superior court is no longer available, appellate review of disputes concerning election procedures “may be appropriate if the contentions raised are of general public interest ‘and are likely to occur in future elections in a manner evasive of timely appellate review’”]; see also Clark v. Burleigh (1992) 4 Cal.4th 474, 481.)







TO BE CONTINUED AS PART II….

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