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)

STORY CONTINUE FROM PART I….



IV
Appellants raise a constitutional challenge premised on their claim that the Legislature had a conflict of interest and did not act impartially when it dictated the ballot label, title and summary of the bond act that it had championed.
According to appellants, rather than being neutral, the label, title and summary prepared by the Legislature for the High-Speed Train Bond Act had a “promotional tenor”--“more than inform,” they “advocated.” Claiming the Legislature used the label, title and summary to “lavish praise on its measure in language that virtually mirrored the argument in favor of the proposition,” appellants protest that “advocacy of an interested party appeared on the ballot masquerading as objective voter guidance.” This, they contend, violated article II of the California Constitution, which says in part that the Legislature shall provide for “free elections” (§ 3) and “prohibit improper practices that affect elections” (§ 4). In appellants’ view, the “expressed public policy of sections 3 and 4” is “elections must be free from government manipulation and other improper practices designed to affect the vote.”
We need not decide the merits of this constitutional challenge because, for reasons that follow, appellants prevail on another ground. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230 [courts “‘“will not decide constitutional questions where other grounds are available and dispositive of the issues of the case”’”]; see also Lyng v. Northwest Indian Cemetery Protective Ass’n. (1988) 485 U.S. 439, 445 [99 L.Ed.2d 534, 544] [“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them”].)
V
The Legislature commendably raises the issue whether its action ran afoul of the Political Reform Act of 1974, which provides, among other things, that, for “each state measure to be voted upon,” the ballot must contain “[t]he official summary prepared by the Attorney General.” (§ 88002, subd. (a)(2).)
It concedes that, “[i]f this reference is construed as a mandate in the [Political Reform Act] that only the Attorney General may prepare the ballot summary, then [the provision of the High-Speed Train Bond Act at issue in this appeal], and any other statute that instead gives this responsibility to anyone other than the Attorney General, amends the [Political Reform Act] and must follow the requirements for amending the [Act] to be valid.”
The Legislature contends, however, that it did not amend the Political Reform Act because “[n]othing in the [Act] prevents the Legislature from specifying, by statute, who is to draft the ballot label and the ballot title and summary that appear in the ballot pamphlet.” In its view, “[g]iven the purpose of Government Code section 88002, . . . the provision of that section that refers to the ‘official summary prepared by the Attorney General’ was intended merely to identify the document as an element of the ballot pamphlet, describing that document by reference to the then-existing statutory scheme. . . . [Therefore,] the reference to the Attorney General in this context was merely descriptive and explanatory. Nothing in the [Political Reform Act] supports the inference that this wording instead was meant to convey to the voters the separate purpose of requiring that only the Attorney General could lawfully exercise this function.”
Appellants counter that Government Code section 88002 means what it says, and the only way the Legislature can take over the task of preparing a ballot label, title and summary on an ad hoc basis is to amend the statute in compliance with the Political Reform Act--which, appellants argue, did not occur.
To determine which party is correct, we apply well-established rules of statutory interpretation.^[1]
“When construing a statute, a court seeks to determine and give effect to the intent of the enacting legislative body.” (People v. Braxton (2004) 34 Cal.4th 798, 810.) “‘We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.’ [Citation.] If the plain, commonsense meaning of a statute’s words is unambiguous, the plain meaning controls.” (Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818.) But if the statutory language may reasonably be given more than one interpretation, “‘“courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute.”’ (People v. Yartz (2005) 37 Cal.4th 529, 538; People v. Garcia (2002) 28 Cal.4th 1166, 1172.)
Section 88002, subdivision (a)(2) is unambiguous. Not only does it say the “Attorney General” shall prepare the ballot summary for each state measure to be voted upon, it characterizes the writing as the “official” ballot summary. The plain, commonsense meaning of these words is that the Political Reform Act intended that the Attorney General have the exclusive authority to prepare the ballot summary. This construction of the statute is consistent with the purposes of the Political Reform Act which, among other things, are to promote impartiality and eliminate conflicts of interest in the performance of governmental duties. (§ 81001.) It is also consistent with a statute dating back to 1913, which has specified that, in preparing the ballot title, “the Attorney General shall give a true and impartial statement of the purpose of the measure in such language that the ballot title shall neither be an argument, nor likely to create prejudice, for or against the proposed measure.” (Elec. Code, § 9051; form. Pol. Code, § 1197, subd. (3) (Stats. 1913, ch. 631, § 1, p. 1160).) And it is consistent with section 9003 of the Elections Code, which addresses the situation where the Attorney General has a conflict of interest with respect to the preparation of a ballot title and summary of a proposed initiative measure. Enacted in 1994 by a two-thirds vote of the Legislature in furtherance of the purposes of the Political Reform Act, this statute stated: “In the event that the Attorney General is a proponent of a proposed measure, the title and summary of the chief purpose and points of the proposed measure, including an estimate or opinion on the financial impact of the measure, shall be prepared by the Legislative Counsel, and the other duties of the Attorney General specified in this chapter with respect to the title and summary and an estimate of the financial effect of the measure shall be performed by the Legislative Counsel.” (Stats. 1994, ch. 920, § 2 [amended in 2009 to change “title and summary” to “circulating title and summary” (Stats. 2009, ch. 373, § 9)].)
Moreover, a contrary interpretation of the statute could lead to strange consequences. As acknowledged by the Legislature’s counsel at oral argument in this court, its view of section 88002, subdivision (a)(2) would mean that the Legislature could delegate to anyone the responsibility of preparing the official ballot summary of a statewide measure. This necessarily could include the sponsor of the measure, a political action committee, or any other person or entity with a vested interest in passage of the measure. This result would be so inconsistent with the purpose of the Political Reform Act that it could be deemed absurd. (In re Luke W. (2001) 88 Cal.App.4th 650, 655 [a court “must select the construction that comports most closely with the apparent intent of the [legislation], with a view to promoting rather than defeating the general purpose of the statute” and “must avoid an interpretation leading to absurd consequences”].)
Accordingly, we reject the Legislature’s assertion that the reference to the Attorney General in section 88002, subdivision (a)(2) is “merely descriptive and explanatory” and did not convey to the voters who approved the Political Reform Act that only the Attorney General can lawfully exercise the function of preparing the official ballot summary. By taking that function away from the Attorney General with respect to the High-Speed Train Bond Act, and itself dictating the official summary for the Act, the Legislature in effect amended section 88002, subdivision (a)(2). (See Franchise Tax Board v. Cory (1978) 80 Cal.App.3d 772, 776 [a statute that “takes away from an existing statute is considered an amendment”; an amendment is “‘any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form’”].)
For reasons that follow, the Legislature also in effect amended the Political Reform Act’s section 88002, subdivision (a)(1) by taking away from the Attorney General the preparation of the ballot title for the High-Speed Train Bond Act.
When subdivision (a)(1) of section 88002 was adopted to specify that the ballot pamphlet must contain, among other things, a ballot “title” and number for each statewide measure, existing law provided that, like the official summary, the “ballot title” must be prepared by the “Attorney General,” “may differ from the legislative or other title of the measure,” and “shall express in not exceeding 100 words the purpose of the measure.” (Form. Elec. Code, §§ 3530, 3531 [Stats. 1961, ch. 23, p. 625]; now Elec. Code, §§ 303.5, 342, 9004, 9005, 13282.) Existing law also required that, “[i]n providing the ballot title and summary,” the Attorney General “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.)
Thus, we must interpret “title” in section 88002, subdivision (a)(1) to mean the ballot title prepared by the Attorney General. (See Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063 [words of a statute must be considered “in the context of the entire . . . statutory scheme of which it is a part, giving significance to every word . . . in pursuance of the legislative purpose”]; California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 642-643 [a statute must be interpreted “in context, examining other legislation on the same subject”; a word given a particular meaning in one part of the law “‘should be accorded the same meaning in other parts or portions of the law’”]; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [“provisions relating to the same subject matter must be harmonized to the extent possible”]; (In re Luke W., supra, 88 Cal.App.4th at p. 655 [a court “must select the construction that comports most closely with the apparent intent of the [legislation], with a view to promoting rather than defeating the general purpose of the statute”].) To construe section 88002, subdivision (a)(1) as the Legislature urges would defeat the purpose of the Political Reform Act to promote impartiality and eliminate conflicts of interest in the performance of governmental duties. (§ 81001.) It would also result in the absurd consequence that a ballot title prepared other than by the Attorney General could be inconsistent with the official ballot summary prepared by the Attorney General. (In re Luke W., supra, 88 Cal.App.4th at p. 655 [we “must avoid an interpretation leading to absurd consequences”].)
In sum, by taking from the Attorney General the function of preparing the ballot title for the High-Speed Train Bond Act, and itself dictating the ballot title for the Act, the Legislature in effect amended section 88002, subdivision (a)(1). (See Franchise Tax Board v. Cory (1978) 80 Cal.App.3d 772, 776.)
The same must be said regarding preparation of the ballot label for the High-Speed Train Bond Act. The “ballot labels” for statewide measures “shall contain a condensed statement in, where possible, not more than 20 words of each measure to be voted on, accompanied by the words, ‘Yes’ and ‘No.’” (Elec. Code, § 13280.) When the Political Reform Act was adopted by voters in 1974, the Elections Code provided 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 him.” (Form. Elec. Code, § 14934 [Stats. 1961, ch. 23, p. 782]; now see Elec. Code, § 13282.) Because, as we have explained, section 88002, subdivision (a)(1) must be construed to require the Attorney General to prepare the ballot title, it also must be interpreted to require the Attorney General to prepare the ballot label, which is nothing more than a condensed statement of the ballot title prepared by the Attorney General. A contrary interpretation would defeat purposes of the Political Reform Act and could result in absurd consequences.
Therefore, by taking from the Attorney General the function of preparing the ballot label for the High-Speed Train Bond Act, and itself dictating the ballot label for the Act, the Legislature in effect amended the Political Reform Act of 1974.
We thus turn to the question whether the amendments complied with section 81012, which restricts the Legislature’s authority to amend provisions of the Political Reform Act. (See Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1483-1484 [“When a statute enacted by the initiative process is involved, the Legislature may amend it only if the voters specifically gave the Legislature that power, and then only upon whatever conditions the voters attached to the Legislature’s amendatory powers. (Cal. Const., art. II, § 10, subd. (c); Amwest[ Surety Ins. Co. v. Wilson (1995)] 11 Cal.4th 1243, 1251.) The purpose of California’s constitutional limitation on the Legislature’s power to amend initiative statutes is to ‘protect the people’s initiative powers by precluding the Legislature from undoing what the people have done, without the electorate’s consent’”].)
Section 81012, subdivision (a) states the Political Reform Act of 1974 “may be amended to further its purposes by statute, passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring and signed by the Governor, if at least 12 days prior to passage in each house the bill in its final form has been delivered to the commission [the Fair Political Practices Commission (§ 82012)] for distribution to the news media and to every person who has requested the commission to send copies of such bills to him or her.” (Italics added.)
As we have noted, the purposes of the Political Reform Act of 1974 are, among other things, to promote impartiality and to eliminate conflicts of interest in the performance of governmental duties. Consistent with these purposes, we have construed section 88002, subdivisions (a)(1) and (a)(2), provisions of the Political Reform Act, to require the Attorney General to prepare the ballot label, title and official summary for each state measure placed on the ballot for a vote of the electorate. And other statutes enacted consistent with, and in furtherance of the purposes of the Political Reform Act, require the Attorney General to prepare an impartial statement of the purpose of the measure, in language that is not an argument, and is not likely to create prejudice, for or against the measure (Elec. Code, § 9051), and preclude the Attorney General from preparing the ballot title and summary of a measure for which the Attorney General is a proponent (Elec. Code, § 9003).
In this light, the Legislature’s amendments of the statutory scheme by itself preparing the ballot label, title and summary of Proposition 1A, the High-Speed Train Bond Act, a measure that the Legislature placed on the ballot, cannot be said to “further [the] purposes” of the Political Reform Act.^[2] Accordingly, the amendments do not comply with the limitation on the Legislature’s authority set forth in section 81012, subdivision (a).
And they do not comply with section 81012, subdivision (b), which allows the Political Reform Act to be amended “by a statute that becomes effective only when approved by the electors.” The parts of the High-Speed Train Bond Act in which the Legislature prepared the ballot label, title and summary of Proposition 1A, and precluded the Attorney General from revising them other than to include a financial impact statement (Stats. 2008, ch. 267, § 11, subd. (f)(1) & (2)) were not submitted to the electorate as part of Proposition 1A and, therefore, were not approved by voters when they adopted Proposition 1A. (Stats 2008, ch. 267, § 9; Supplemental Official Voter Information Guide, Gen. Elec. (Nov. 4, 2008) pp. 10-13.)
Even if the Legislature had included them in Proposition 1A, the provisions taking away from the Attorney General the responsibility of preparing the ballot label, title and official ballot summary of the measure would not have been a valid amendment of the Political Reform Act. It would defeat the purposes of section 81012 if the Legislature can take over the duty of preparing the ballot label, title and official summary of a measure it puts on the ballot simply by including such provisions in the measure. The Legislature can take over those functions only if it obtains the approval of the electorate to do so prior to placement of the measure on the ballot.
Consequently, section 11, subdivisions (c), (d), (f)(1), and (f)(2) of the Statutes of 2008, chapter 267--requiring the Secretary of State to use the ballot label, title and summary prepared by the Legislature for Proposition 1A, and precluding the Attorney General from supplementing, subtracting from, or otherwise revising that label, title and summary except to include a financial impact summary--were invalid amendments of the Political Reform Act of 1974.
DISPOSITION
The judgment of the superior court is reversed to the extent that it denies appellants’ petition for a peremptory writ of mandate directing the Secretary of State to obtain from the Attorney General an impartial ballot label, title and summary of Proposition 1A, and to use them instead of those prepared by the Legislature. The cause is remanded to the superior court with directions to dismiss the petition as moot. (See Gebert v. Patterson, supra, 186 Cal.App.3d at p. 877.) The Legislature shall reimburse appellants for their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3) & (a)(5).)


SCOTLAND , J.*
We concur:


NICHOLSON , Acting P. J.


HULL , J.

* Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.



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