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Howard Jarvis Taxpayers Association et al v. Debra Bowen

January 27, 2011

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.



APPEAL from a judgment of the Superior Court of Sacramento County, Michael P. Kenny, Judge.Super. Ct. No. 34200880000048CUWMGDS

The opinion of the court was delivered by: Scotland,j.

CERTIFIED FOR PUBLICATION

----

Reversed.

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.)*fn1

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)).*fn2 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 ...


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