(2004) 121 Cal. App. 4th 222
Court of Appeal, Third District, California.
CALIFORNIANS FOR AN OPEN PRIMARY et al., Petitioners,
Kevin SHELLEY, as Secretary Of State, Respondent;
California Legislature, Real Party in Interest.
July 30, 2004.
Review Granted Aug. 9, 2004.
Davis, J., filed a concurring and dissenting opinion.
Strumwasser & Woocher; Fredric D. Woocher, Michael J. Strumwasser,
Santa Monica, Aimee E. Dudovitz, for Petitioners.
Bill Lockyer, Attorney General, Louis R. Mauro, Senior Assistant Attorney
General, Catherine M. Van Aken, Supervising Deputy Attorney General, Geoffrey
L. Graybill, Deputy Attorney General, for Respondent.
Diane F. Boyer-Vine, Legislative Counsel, Marian M. Johnston, Principal
Deputy Legislative Counsel, Dulcinea A. Grantham, Deputy Legislative Counsel,
for Real Party in Interest.
Californians for an Open Primary, a nonprofit public benefit corporation,
and Nick Tobey, an interested citizen and taxpayer, filed an original
petition for writ of mandamus or prohibition in this court, [FN1] seeking
an order prohibiting the Secretary of State, Kevin Shelley, from placing
Senate Constitutional Amendment No. 18 of the 2003-04 Regular Session,
(res. ch. 103, hereafter SCA 18) on the ballot for the November 2, 2004,
general election as Proposition 60.
FN1. Petitioners invoke our original jurisdiction to consider their petition
for writ of mandamus challenging the constitutionality of a statewide
ballot measure. (Cal. Const., art. VI, § 10; Code Civ. Proc., §
1085; Elec.Code, § 13314; Cal. Rules of Court, rule 56(a).) We issued
an alternative writ.
SCA 18 proposes two unrelated changes in the Constitution, one relating
to "primary elections," [FN2] the other relating to "state
property." [FN3] Because the proposed changes were adopted by the
Legislature in a single resolution to be joined in a single ballot proposition,
in the absence of judicial intervention they will be submitted to the
voters as a single measure.
FN2. Proposed subdivision (b) of article II, section 5 states: "A
political party that participated in a primary election for a partisan
office has the right to participate in the general election for that office
and shall not be denied the ability to place on the general election ballot
the candidate who received, at the primary election, the highest vote
among that party's candidates."
FN3. Proposed section 9 of article III states: "The proceeds from
the sale of surplus state property occurring on or after the effective
date of this section, and any proceeds from the previous sale of surplus
state property that have not been expended or encumbered as of that date,
shall be used to pay the principal and interest on bonds issued pursuant
to the Economic Recovery Bond Act authorized at the March 2, 2004, statewide
primary election. Once the principal and interest on those bonds are fully
paid, the proceeds from the sale of surplus state property shall be deposited
into the Special Fund for Economic Uncertainties, or any successor fund.
For purposes of this section, surplus state property does not include
property purchased with revenues described in Article XIX or any other
special fund moneys."
Petitioners contend SCA 18 violates the separate vote requirement of section
1, article XVIII (section 1) [FN4] of the California Constitution (Constitution),
which governs the amendment and revision of the Constitution. It authorizes
the Legislature to "propose an amendment or revision" to the
Constitution for submission to the voters, but requires that "[e]ach
amendment shall be so prepared and submitted that it can be voted on separately."
We agree with petitioners' claim that because SCA 18 proposes to make
two wholly unrelated, substantive changes in the Constitution, it proposes
two "amendments," each of which under article XVIII must be
"so prepared and submitted" that it "can be voted on separately"
by the voters. We disagree with petitioners' claim that section 1
requires the Legislature to vote separately on each of several proposed
FN4. A reference to a section is to a section of article XVIII of the California
Constitution unless otherwise designated.
Real party in interest, the Legislature of the State of California (real
party), assumes the proposed changes are amendments but contends a simple
collection of multiple amendments constitutes a "revision" within
the power of the Legislature to submit to the People. We reject real party's
argument because it would nullify the plain requirement of section 1 and
because the mere joining of two unrelated amendments does not quantitatively
or qualitatively constitute a "revision." (Raven v. Deukmejian
(1990) 52 Cal.3d 336, 349-353, 276 Cal.Rptr. 326, 801 P.2d 1077.) We need
not consider to what extent or in what manner two or more changes need
be related to constitute "an amendment" because the two changes
proposed by SCA 18 are wholly unrelated.
SCA 18 is peculiarly subject to preelection review since the remedy we
provide for violation of article XVIII is to direct that its provisions
be carried out. If the Legislature disagrees with this remedy it may,
by appropriate vote, withdraw either or both of the amendments from the
ballot pursuant to section 1.
Since section 4 of article XVIII mandates that a constitutional amendment
proposed by the Legislature shall be submitted to the voters in a form
consistent with the separate vote requirement of section 1, we will issue
a peremptory writ of mandate directing the Secretary of State to prepare
and place the amendments on the ballot so that each can be voted on separately.
Preliminarily, we address the question whether preelection review of the
petitioners' claim is appropriate.
Section 1 sets forth the means by which the Legislature may amend the Constitution.
(Livermore v. Waite (1894) 102 Cal. 113, 117, 36 P. 424.) The first sentence
provides the Legislature may propose "an amendment" of the Constitution
by a two-thirds vote. The second sentence requires that "[e]ach amendment
[so proposed] shall be so prepared and submitted that it can be voted
In Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 90 Cal.Rptr.2d
810, 988 P.2d 1089 (Senate v. Jones), the Supreme Court conducted preelection
review of a statewide initiative ballot measure challenged under the single
subject rule of article II, section 8, subdivision (d). The court found
that article II, section 8, subdivision (d), expressly contemplated preelection
relief in stating that " '[a]n initiative measure embracing more
than one subject may not be submitted to the voters or have any effect.'
" (Id. at p. 1153, 90 Cal.Rptr.2d 810, 988 P.2d 1089, italics omitted.)
The court said that deferring review until after an election primarily
applies when the challenge is to the substance of the measure. The rule,
however, does not preclude preelection review when the challenge is based
upon a claim the proposal violates a provision governing the manner or
form in which the proposal must be considered by the voters. The court
recalled the accuracy of its past observation that " '[t]he presence
of an invalid measure on the ballot steals attention, time, and money
from the numerous valid propositions on the same ballot. It will confuse
some voters and frustrate others, and an ultimate decision that the measure
is invalid, coming after the voters have voted in favor of the measure,
tends to denigrate the legitimate use of the initiative procedure.'
" (Senate v. Jones, supra, 21 Cal.4th at p. 1154, 90 Cal.Rptr.2d
810, 988 P.2d 1089, quoting American Federation of Labor v. Eu (1984)
36 Cal.3d 687, 697, 206 Cal.Rptr. 89, 686 P.2d 609.) Contrary to the claim
of real party that no reported decision grants preelection review of a
legislatively proposed constitutional amendment, just such review was
granted in Livermore v. Waite, supra, 102 Cal. 113, 36 P. 424, which restrained
the Secretary of State from certifying a proposed constitutional amendment
because it was "not such an amendment as the legislature has been
authorized to submit to their votes." (Id. at pp. 123-124, 36 P. 424.)
Section 1 presents a similar candidate for preelection review. The separate
vote requirement is directed to the means by which the voters may exercise
an effective voice in the amendment of the Constitution. Its manifest
purpose is to prevent voter confusion and coercion that results from the
holding of a vote on a measure that impermissibly joins unrelated amendments
and to avoid log-rolling, by which a provision with strong support may
carry with it a provision that otherwise might not pass. Such an election
would defeat the very purpose of the requirement. Such a defect could
not be cured by post-election relief because it is not possible to determine
which of the proposed changes would have been adopted by the voters had
they been submitted as separate amendments.
Preelection review is all the more appropriate when the court can provide
relief that satisfies the requirements of the Constitution by directing
the Secretary of State to prepare the amendments for the ballot so that
they may be voted on separately.
The Separate Vote Requirement
This case turns on the distinction between an amendment and a revision,
as those terms are used in article XVIII, and upon the meaning of the
first sentence of section 1, whether the Legislature must vote separately
on each proposed amendment.
Petitioners contend that placement of SCA 18 on the November 2004 ballot
as a single measure, subject to a single vote, would violate the separate
vote requirement of section 1 because it contains two "amendments,"
each of which must be submitted separately to the voters.
Real party assumes that each of the proposed changes is an amendment but
claims that section 1 "does not restrict the Legislature's plenary
authority to decide how it wishes to draft proposals to amend or revise
the California Constitution." It reasons that, because section 1
authorizes the Legislature to propose both amendments and revisions of
the Constitution, "[i]t defies logic as well as common sense to suggest
that the Legislature's unconditional constitutional power to propose
to the voters a revision measure addressing multiple subjects does not
encompass the authority to propose to the voters a measure with two changes
it deems necessary and appropriate."
Stated another way, real party argues that two unrelated amendments constitute
a revision. That is not the case, as we will show.
A. Standard of Review
Before addressing the merits of petitioners' claim, we consider the
standard of review to be applied in construing and applying the constitutional
language. We are guided by two principles. First, it is the judiciary
that possesses the power to construe the Constitution in the last resort.
(Raven v. Deukmejian, supra, 52 Cal.3d at p. 354, 276 Cal.Rptr. 326, 801
P.2d 1077; Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 176, 2 L.Ed
60, 73 [interpreting and applying the Constitution is "the very essence
of judicial power"].) Second, when the Legislature proposes to amend
the Constitution, its authority is delegated, not plenary. (Livermore
v. Waite, supra, 102 Cal. at pp. 117-118, 36 P. 424.)
The basis for the second principle was explained in Livermore v. Waite
where the court recognized that article XVIII provides two methods to
effect legislatively proposed changes to the Constitution, one by amendment,
the other by revision. In either case, the Constitution cannot be revised
or amended "except in the manner prescribed by itself, and the power
which it has conferred upon the legislature in reference to proposed amendments,
as well as to calling a convention, must be strictly pursued ... The power
of the legislature to initiate any change in the existing organic law
is, however, of greatly less extent, and, being a delegated power, is
to be strictly construed under the limitations by which it has been conferred.
In submitting propositions for the amendment of the constitution, the
legislature is not in the exercise of its legislative power, or of any
sovereignty of the people that has been intrusted to it, but is merely
acting under a limited power conferred upon it by the people, and which
might with equal propriety have been conferred upon either house, or upon
the governor, or upon a special commission, or any other body or tribunal.
The extent of this power is limited to the object for which it is given,
and is measured by the terms in which it has been conferred, and cannot
be extended by the legislature to any other object, or enlarged beyond
these terms." (102 Cal. at pp. 117-118, 36 P. 424, italics added.)
Thus, we reject real party's claim that we should apply a rule of deference,
which states that we must give deference to the Legislature's implied
interpretation of constitutional provisions. While the Legislature's
authority to enact laws is plenary and all intendments favor the exercise
of that authority (County of Riverside v. Superior Court (2003) 30 Cal.4th
278, 284, 132 Cal.Rptr.2d 713, 66 P.3d 718), that principle applies when
the Legislature is acting in its purely legislative capacity. (California
Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 171, 175, 148 Cal.Rptr.
875, 583 P.2d 729.) As noted above, the Legislature does not act in that
capacity when it proposes a constitutional amendment. (Livermore v. Waite,
supra, 102 Cal. at p. 117, 36 P. 424.)
B. History of Section 1
The construction of article XVIII turns in part on the history of its enactment.
As originally adopted in 1849, former article X, sections 1 and 2 set forth
the procedures for the Legislature to propose one or more amendments to
the Constitution and to revise the entire Constitution. [FN5] Section
1 required that proposed amendments be submitted to the voters for adoption.
However, as real party points out, the Legislature was given the authority
to decide exactly how the amendments it proposed would be submitted to
the voters. Section 2 set forth the procedures for convening a constitutional
convention to revise and change the entire Constitution, to be submitted
to the voters for rejection or ratification by the people by majority
vote. (3 Deering's Cal.Codes Annot., Const. Annot., supra, appen.
1, at p. 724.)
FN5. Section 1 provided in pertinent part: "Any amendment or amendments
to this Constitution may be proposed in the Senate or Assembly; and if
the same shall be agreed to by a majority of the members elected to each
of the two Houses, such proposed amendment or amendments shall be entered
on their journals, with the yeas and nays taken thereon, and referred
to the Legislature then next to be chosen, and shall be published for
three months next preceding the time of making such choice. And if in
the Legislature next chosen as aforesaid, such proposed amendment or amendments
shall be agreed to by a majority of all the members elected to each House,
then it shall be the duty of the Legislature to submit such proposed amendment
or amendments to the people, in such manner and at such time as the Legislature
shall prescribe; and if the people shall approve and ratify such amendment
or amendments, by a majority of the electors qualified to vote for members
of the Legislature voting thereon, such amendment or amendments shall
become part of the Constitution." (3 Deering's Cal.Codes Annot.,
Constitutional Annotations (1849-1973) (1974) appen. 1, art. X, §
1 (1849) pp. 723-724.)
In 1879, the Constitution was revised, changing section 1 of former article
X in several respects. Pertinent to our discussion, the provisions were
moved to article XVIII, sections 1 and 2 and the separate vote requirement
was added to section 1. [FN6]
FN6. Former article XVIII, section 1, provided in full: "Any amendment
or amendments to this Constitution may be proposed in the Senate or Assembly,
and if two-thirds of all the members elected to each of the two houses
shall vote in favor thereof, such proposed amendment or amendments shall
be entered in their journals, with the yeas and nays taken thereon; and
it shall be the duty of the Legislature to submit such proposed amendment
or amendments to the people in such manner, and at such time, and after
such publication as may be deemed expedient. Should more amendments than
one be submitted at the same election they shall be so prepared and distinguished,
by numbers or otherwise, that each can be voted on separately. If the
people shall approve and ratify such amendment or amendments, or any of
them, by a majority of the qualified electors voting thereon such amendment
or amendments shall become part of this Constitution. (Const. of State
of California Annot. (1946) art. XVIII, § 1 (1879), p. 1291, italics added.)
The 1879 revision contained two pertinent changes. First, it provided that
"[a]ny amendment or amendments to this Constitution may be proposed
in the Senate or Assembly, and if two-thirds of all the members elected
to each of the two houses shall vote in favor thereof ... it shall be
the duty of the Legislature to submit such proposed amendment or amendments
to the people in such manner, and at such time, and after such publication
as may be deemed expedient." As evident from the text, this section
authorized the Legislature to propose one or more amendments in a single
resolution. Second, the discretion to submit proposed amendments was conditioned
by the provision that "[s]hould more amendments than one be submitted
at the same election they shall be so prepared and distinguished, by numbers
or otherwise, that each can be voted on separately." (Const. of the
State of California, Annot., supra, art. XVIII, § 1 (1879), p. 1291.)
Thus, the 1879 provisions authorized the Legislature to propose multiple
amendments in a single resolution but required it to prepare them for
submission, "by numbers or otherwise," so that "each can
be voted on separately."
Article XVIII, section 1 was amended again in 1962 without change in the
above provisions. The amendment granted the Legislature the additional
authority to propose for voter approval, a partial or total revision of
the Constitution. (3 Deering's Cal.Codes Annot., Constitutional Annotations
1849- 1973, supra, art. XVIII, § 1, adopted November 6, 1962, p.
527.) [FN7] Under this version of article XVIII, the Legislature had the
authority to propose revisions as well as amendments, and revisions could
be effected by legislative proposal as well as by a constitutional convention.
FN7. Former article XVIII, section 1 provided in full: "Any amendment
or amendments to, or revision of, this Constitution may be proposed in
the Senate or Assembly, and if two-thirds of all the members elected to
each of the two houses shall vote in favor thereof, such proposed amendment,
amendments, or revision shall be entered in their Journals, with the yeas
and nays taken thereon; and it shall be the duty of the Legislature to
submit such proposed amendment, amendments, or revision to the people
in such manner, and at such time, and after such publication as may be
deemed expedient. Should more amendments than one be submitted at the
same election they shall be so prepared and distinguished, by numbers
or otherwise, that each can be voted on separately. If the people shall
approve and ratify such amendment or amendments, or any of them, or such
revision, by a majority of the qualified electors voting thereon such
amendment or amendments shall become a part of this Constitution, and
such revision shall be the Constitution of the State of California or
shall become a part of the Constitution if the measure revises only a
part of the Constitution." (Art. XVIII, § 1 (1962), italics added.)
The current version of article XVIII had its genesis in 1968 as a proposal
to the Legislature by the California Constitutional Revision Commission.
The Commission was of the view the separate vote requirement could not
be enforced because the Legislature could avoid the requirement by grouping
several amendments together, classifying them as a partial revision, and
submitting them to the voters, thus avoiding the separate vote requirement.
(Cal. Const. Revision Com., Article XVIII Amending and Revising the Constitution,
Background Study 7 (May 1967) pp. 4, 19.) This view implied that a revision
is nothing more than a collection of amendments. It also implied that
the term "amendment", in the first sentence of section 1, includes
the plural "amendments" since it sanctioned the submission of
multiple amendments. Accordingly, the Commission proposed that the separate
vote requirement be deleted because it found "[i]t is ineffective
because it can be circumvented by entitling several amendments as a revision."
(Cal. Const. Revision Com., Proposed Revision of Article XVIII (1968)
Summary of Recommendations, pp. 107, 109.)
The Commission's proposal to eliminate the separate vote requirement
was not placed on the ballot by the Legislature and consequently was not
enacted by vote of the People. Instead, in 1970, when section 1 was repealed
and replaced by the current provisions by a vote of the people, the separate
vote requirement was retained in the abbreviated form now found in section
1. [FN8] Accordingly, the Commission's implied construction of the
term "revision" as including the mere aggregation of multiple
amendments was rejected. The language requiring the Legislature to submit
proposed revisions to the voters was moved to section 4.
FN8. It appears in its present form as a replacement of unrelated matter
in Assembly Constitutional Amendment No. 67 (1970 Reg. Sess.) as amended
in Assembly June 16, 1970.
The ballot pamphlet submitted to the voters stated that the measure "would
retain some existing provisions without change and would restate other
provisions, some with and some without substantive change." (Ballot
Pamp., Gen. Elec. (Nov. 3, 1970) Proposed Amends. to Cal. Const., Detailed
Analysis by the Legislative Counsel, p. 27.) The pamphlet advised the
voters that the proposed amendments did not change the separate vote requirement
of section 1 nor abrogate the authority of the Legislature to package
several amendments in a single resolution for its vote. [FN9]
FN9. We quote the Legislative Counsel's analysis in the ballot pamphlet in full:
"This measure would revise portions of Articles IV and XVIII of the
California Constitution. The revision would retain some existing provisions
without change and would restate other provisions, some with and some
without substantive change. In addition, certain existing provisions would
be deleted from the Constitution, thus placing the subject matter of the
deleted provisions from then on under legislative control through the
enactment of statutes.
Amending and Revising the Constitution and Initiative and Referendum Measures
Generally, Sections 22 and 24 of Article IV and Article XVIII of the Constitution
(1) Constitutional amendments may be proposed for submission to the voters
(a) by the Legislature and (b) by electors through the initiative process.
Revision of the Constitution may be proposed by the Legislature.
(2) If provisions of two or more amendments proposed by initiative or
referendum measures approved at the same election conflict, the provisions
of the measure receiving the highest affirmative vote prevail. There is
no such express provision regarding amendments proposed by the Legislature.
(3) The Legislature by two-thirds vote may submit to the voters the proposition
as to whether to call a convention to revise the Constitution. If the
proposition is approved by a majority of those voting on it, the Legislature
at its next session must provide by law for the calling of a convention
consisting of delegates (not to exceed the number of legislators) who
are to be chosen in the same manner and to have the same qualifications
as legislators. Delegates are required to meet within three months of
The revision would retain the general substance of these provisions with
the following major changes:
(1) A new provision would be added specifically authorizing the Legislature,
by a two-thirds vote of the membership of each house, to amend or withdraw
a constitutional amendment or revision which the Legislature has proposed
where the action is taken before the proposal has been voted on by the
(2) (a) The general requirement that the Legislature provide for the constitutional
convention at the session following the voters' approval of the proposition
authorizing the convention would be replaced with a requirement that the
Legislature provide for the convention within six months after the voters' approval.
(b) The existing constitutional limitations on the number of elected delegates
to a constitutional convention and the requirement that they have the
same qualifications and be chosen in the same manner as legislators would
be deleted. A requirement would be added that the delegates, each of whom
must be a voter, be elected from districts as nearly equal in population
as may be practicable.
(c) The existing constitutional requirement that the delegates meet within
three months after their election would be deleted.
(3) A provision would be added that if two or more measures amending or
revising the Constitution are approved by the voters at the same election
and they conflict, the provisions of the measure receiving the highest
affirmative vote shall prevail. Thus, no distinction would be made in
the Constitution between amendments proposed by the Legislature and by
(4) Provisions prescribing detailed procedures for submitting to the voters,
revisions proposed by the constitutional convention and for certifying
the results of the election, would be deleted." (Ibid.)
Accordingly, we read the current version of article XVIII as making no
substantive change in the separate vote requirement as set forth in 1879 and 1962.
C. The Legislative Vote Requirement
At issue is the meaning of section 1. It provides in full as follows.
"Sec. 1. The Legislature by rollcall vote ... 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
Standing alone, the first sentence appears to make a substantive change
to the preexisting language by eliminating the term "amendments,"
thereby suggesting that each amendment ("an amendment") must
be voted on separately by the Legislature. By contrast, the second sentence
refers to "[e]ach amendment," plainly referring to more than
Since the second sentence modifies the first sentence, the term "amendment"
in the first sentence must be read to embrace multiple amendments as well.
If the first sentence required the Legislature to vote separately on each
amendment, there would be no need for the second sentence. This is in
keeping with the constitutional history of the 1970 amendments to article
XVIII, set forth above, which fully supports this construction.
Thus, the two sentences of section 1 should be read together to authorize
the Legislature to package several constitutional amendments in a resolution
for its single vote but to require that the package be "so prepared
and submitted" that each amendment can be voted on separately by
This construction rules out a separate challenge by petitioner to the constitutionality
of the vote by the Legislature in adopting SCA 18. As will be seen, this
will affect the remedy we provide.
This brings us to the meaning of the terms "amendment" and "revision"
in section 1.
D. The Meaning of Revision
Section 1 authorizes the Legislature to propose and submit to the voters
either "an amendment" or a "revision" of the Constitution
and requires that "[e]ach amendment shall be so prepared and submitted
that it can be voted on separately." The separate vote requirement
does not apply to a revision. Thus, real party argues that a "revision"
is nothing more than a collection of two or more amendments. [FN10] We disagree.
FN10. The dissent mistakenly claims that we have suggested the Legislature
"cannot propose 'partial revisions.' " (Dis. opn. at
p. 818.) We have made no such assertion.
The court in Livermore v. Waite, supra, described the fundamental difference
between an amendment and a revision: "The very term 'constitution'
implies an instrument of a permanent and abiding nature, and the provisions
contained therein for its revision indicate the will of the people that
the underlying principles upon which it rests, as well as the substantial
entirety of the instrument, shall be of a like permanent and abiding nature.
On the other hand, the significance of the term 'amendment' implies
such an addition or change within the lines of the original instrument
as will effect an improvement, or better carry out the purpose for which
it was framed." (103 Cal. at pp. 118-119, 37 P. 194.)
More recently, the court in Amador Valley Joint Union High Sch. Dist. v.
State Bd. of Equalization (1978) 22 Cal.3d 208, 223, 149 Cal.Rptr. 239,
583 P.2d 1281 (Amador Valley ), applied a quantitative and qualitative
test in determining whether the Legislature proposed a revision rather
than an amendment. [FN11] The court explained that a revision is proposed
if the changes are "so extensive ... as to change directly the 'substantial
entirety' of the Constitution by the deletion or alteration of numerous
existing provisions...." (Ibid.) A single enactment that accomplishes
" 'such far reaching changes in the nature of our basic governmental
plan ... [may] amount to a revision.' " (Raven v. Deukmejian,
supra, 52 Cal.3d at pp. 354-355, 276 Cal.Rptr. 326, 801 P.2d 1077, quoting
Amador Valley, supra, 22 Cal.3d at p. 223, 149 Cal.Rptr. 239, 583 P.2d
1281 [finding a change proposed by Proposition 115 to vest all judicial
interpretive power as to fundamental criminal defense rights in the United
States Supreme Court effected a revision of the Constitution].)
FN11. Although Amador Valley and Raven v. Deukmejian concern initiatives
and distinguish between a "revision" and an "amendment"
because the initiative process does not apply to a revision (art. II,
§ 8, subd. (a)), it cannot be supposed that a difference in meaning
would turn on the genesis of the constitutional proposal.
The individual changes proposed by SCA 18 are not revisions, nor does real
party assert that they are. SCA 18 proposes to add two different provisions
to the Constitution. First, it proposes to add subdivision (b) to article
II, section 5, which would give a political party the right to participate
in the general election by placing the candidate who received, at the
primary election, the highest vote among that party's candidates.
This provision merely encodes the existing law into the Constitution.
(See Elec.Code, § § 2151, 13102, 15451; see and compare California's
Democratic Party v. Jones (2000) 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502.)
Second, it proposes to add section 9 to article III, which would require
the Legislature to use the proceeds from the sale of surplus state property
"to pay the principal and interest on bonds issued pursuant to the
Economic Recovery Bond Act authorized at the March 2, 2004, statewide
primary election." Article III, section 9 changes existing law [FN12]
by limiting the Legislature's authority to appropriate funds from
a specific non-tax revenue source by restricting the purposes for which
those funds may be appropriated. Because it restricts the Legislature's
appropriation authority in a very limited manner, it does not effect such
a substantial change of the Legislature's authority to determine how
state funds shall be expended as to amount to a revision. (Art. IV, §
12; compare Raven v. Deukmejian, supra, 52 Cal.3d at pp. 350-353, 276
Cal.Rptr. 326, 801 P.2d 1077 and In re Lance W. (1985) 37 Cal.3d 873,
891, 210 Cal.Rptr. 631, 694 P.2d 744.)
FN12. Currently, the proceeds from a state agency's sale of surplus
state personal property is remitted to the fund from which that agency
receives the majority of its support appropriation. (Gov.Code, §
14674, subds.(b) & (d).) The funds are used to augment its support
appropriation. If the surplus property is sold by the Department of General
Services, the proceeds are deposited in the General Fund.
Thus, the amendments proposed by SCA 18 are two in number, wholly unrelated,
not extensive, and do not constitute integral parts of a far-reaching
change in the nature of the government plan. Although they are substantive
in nature, neither changes the Constitution in a fundamental way that
alters our basic plan of government.
Before addressing the meaning of amendment, we examine the single subject
rule, a related but different principle governing initiative measures
and legislatively enacted statutes.
The electorate may propose statutes and amendments, but not revisions,
to the Constitution by initiative measure (Art. II, § § 8, subd.
(a), 10, subd. (a)), however, the measure must not embrace more than one
subject. (Art. II, § 8, subd. (d).) This limitation is known as the
single subject rule. An initiative measure complies with this rule if,
" ' " 'despite its varied collateral effects, all of
its parts are "reasonably germane" to each other,' and to
the general purpose or object of the initiative." ' (Legislature
v. Eu  54 Cal.3d 492, 512, 286 Cal.Rptr. 283, 816 P.2d 1309, original
italics.)'' (Senate v. Jones, supra, 21 Cal.4th at p. 1157, 90
Cal.Rptr.2d 810, 988 P.2d 1089.) " '[T]he single-subject provision
does not require that each of the provisions of a measure effectively
interlock in a functional relationship. [Citation.] It is enough that
the various provisions are reasonably related to a common theme or purpose.'
" (Senate v. Jones, supra, 21 Cal.4th at p. 1157, 90 Cal.Rptr.2d
810, 988 P.2d 1089, quoting Legislature v. Eu, supra, 54 Cal.3d at p.
513, 286 Cal.Rptr. 283, 816 P.2d 1309.) Because the rule is qualitative
and looks only to the subject of the proposed changes, it does not limit
the number of amendments that may be included in a measure or bill. (Brosnahan
v. Brown (1982) 32 Cal.3d 236, 246, 186 Cal.Rptr. 30, 651 P.2d 274.)
The primary purpose of the single subject rule is to minimize the risk
of confusion and deception and prevent the subversion of the will of the
Legislature or voters. (Amador Valley, supra, 22 Cal.3d at p. 231, 149
Cal.Rptr. 239, 583 P.2d 1281; Senate v. Jones, supra, 21 Cal.4th at pp.
1156-1157, 90 Cal.Rptr.2d 810, 988 P.2d 1089.) The rule also prevents
"log-rolling," the practice of including in a bill or measure
"a provision unrelated to [the] main subject matter and title ...
with the hope that the provision will remain unnoticed and unchallenged.
By invalidating these unrelated clauses, the single subject rule prevents
the passage of laws that otherwise might not have passed had the legislative
mind been directed to them. [Citation.]" (Homan v. Gomez (1995) 37
Cal.App.4th 597, 600, 43 Cal.Rptr.2d 647; Amador Valley, supra, 22 Cal.3d
at p. 231, 149 Cal.Rptr. 239, 583 P.2d 1281.)
F. The Meaning of Amendment
The word "amendment" appears twice in section 1. The first sentence
refers to "an amendment." The second sentence refers to "each
amendment." Giving each word and phrase a meaning and construing
each word in its ordinary sense (Thompson v. Department of Corrections
(2001) 25 Cal.4th 117, 122, 105 Cal.Rptr.2d 46, 18 P.3d 1198; Delaney
v. Superior Court (1990) 50 Cal.3d 785, 798-799, 268 Cal.Rptr. 753, 789
P.2d 934), it seems clear the framers intended the Legislature to prepare
and submit to the voters a single amendment.
The question then is what is meant by "amendment." The Constitution
does not define that term. Petitioners contend the word is ambiguous and
therefore requires judicial construction to determine whether multiple
changes proposed to existing provisions should be treated as multiple
amendments for purposes of the separate vote requirement. In petitioners'
view an amendment includes changes that are substantive and closely related.
Real party contends section 1 does not impose any restriction on the Legislature's
exercise of its discretion as to the substance of a proposed amendment.
Under this reading, the separate vote requirement is nothing more than
a requirement that a legislative proposal be voted upon separately from
We disagree and look to the historical development of the provision and
pertinent case law for guidance.
1. Case Law
Turning to the few California cases construing the term amendment in section
1, it has been held that an amendment is a change that adds to or repeals
another provision of the Constitution (Brosnahan v. Brown, supra, 32 Cal.3d
at p. 260, 186 Cal.Rptr. 30, 651 P.2d 274), but does not include amendments
by implication. (Tinsley v. Superior Court (1983) 150 Cal.App.3d 90, 107,
197 Cal.Rptr. 643; Wright v. Jordan (1923) 192 Cal. 704, 711, 221 P. 915.)
[FN13] "The requirement of article XVIII, section 1, is merely that
each constitutional provision which is directly amended by an initiative
measure must be separately submitted to the voters." (Tinsley v.
Superior Court, supra, 150 Cal.App.3d at p. 107, 197 Cal.Rptr. 643.) On
the other hand, as noted, a revision changes " 'the nature of
our basic governmental plan ....' " (Raven v. Deukmejian, supra,
52 Cal.3d at pp. 354-355, 276 Cal.Rptr. 326, 801 P.2d 1077, quoting Amador
Valley, supra, 22 Cal.3d at p. 223, 149 Cal.Rptr. 239, 583 P.2d 1281.)
FN13. The measure considered by the court in Tinsley v. Superior Court,
supra, was an initiative measure, although, constitutional amendments
adopted by initiative are not subject to the separate vote requirement
of section 1. (Wright v. Jordan, supra, 192 Cal. at pp. 710-712, 221 P.
915; Epperson v. Jordan (1938) 12 Cal.2d 61, 68-69, 82 P.2d 445.)
The term amendment has also been defined as used in article II, section
10, subdivision (d), which limits the Legislature's authority to amend
or repeal an initiative statute. In People v. Cooper (2002) 27 Cal.4th
38, at page 44, 115 Cal.Rptr.2d 219, 37 P.3d 403, the court stated that
an amendment is "a legislative act designed to change an existing
initiative statute by adding or taking from it some particular provision."
(Italics added.) Similarly, in Franchise Tax Bd. v. Cory (1978) 80 Cal.App.3d
772, 145 Cal.Rptr. 819, the court said "[a]n 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, ...'
" (Id. at p. 776, 145 Cal.Rptr. 819, quoting Sutherland, Statutory
Construction (4th ed.1972) § 22.01, p. 105.)
2. The Law of Other States
We next turn to case law from other states interpreting similar provisions
of their respective constitutions. (People v. Batts (2003) 30 Cal.4th
660, 687-688, 134 Cal.Rptr.2d 67, 68 P.3d 357 [we may consider the case
law of sister states in light of the paucity of our own case law].)
At least 29 other states impose a separate vote requirement upon legislative
constitutional amendments. (Cambria v. Soaries (2001) 169 N.J. 1, 14-15,
776 A.2d 754, 762.) [FN14] While there is a wide variance in the interpretation
of the separate vote requirement (Id. at p. 14, 776 A.2d at p. 762), the
courts generally recognize that these provisions share a primary goal,
to avoid voter confusion and to prevent "log-rolling." As noted,
log-rolling is the disfavored practice of joining two or more independent
measures in a single proposal to entice voters who support one of the
measures into voting for the entire measure in order to secure passage
of the individual provision that is favored. (Id. at p. 18, 776 A.2d at p. 764.)
FN14. Ariz. Const., art. XXI, § 1; Ark. Const., art. XIX, § 22;
Colo. Const., art. XIX, § 2; Ga. Const., art. X, § 1, P 2; Haw.
Const., art. XVII, § 3; Idaho Const., art. XX, § 2; Ind. Const.,
art. XVI, § 2; Iowa Const., art. X, § 2; Kan. Const., art. XIV,
§ 1; Ky. Const., § 256; La. Const., art. XIII, § 1; Md.
Const., art. XIV, § 1; Minn. Const., art. IX, § 1; Miss. Const.,
art. XV, § 273; Mo. Const., art. XII, § 2(b); Mont. Const.,
art. XIV, § 11; Neb. Const., art. XVI, § 1; N.J. Const., art.
IX, P 5; N.M. Const., art. XIX, § 1; Ohio Const., art. XVI, §
1; Okla. Const., art. XXIV, § 1; Or. Const., art. XVII, § 1;
Pa. Const., art. XI, § 1; Tenn. Const., art. XI, § 3; Wash.
Const., art. XXIII, § 1; W. Va. Const., art. XIV, § 2; Wis.
Const., art. XII, § 1; and Wyo. Const., art. XX, § 2.
In State ex rel. Clark v. State Canvassing Bd. (N.M.1995) 119 N.M. 12,
15, 888 P.2d 458, 461, the New Mexico Supreme Court explained that log-rolling
was considered inimical to the constitutional amendment process. "
'[T]he particular vice in "logrolling," or the presentation
of double propositions to the voters, lies in the fact that such is "inducive
of fraud," and that it becomes "uncertain whether either [of]
two or more propositions could have been carried by vote had they been
submitted singly." [Citations.] Indeed, we recently reaffirmed that
'the joinder of two or more amendments is no mere irregularity, and
that the constitutional prohibition against joinder goes to the heart
of the amendment process mandated by the people in the adoption of their
Similarly, the Arizona Supreme Court has noted that log-rolling actions,
which are "evil in the Legislature, where they deal only with statutes,
... [are all the more] vicious when constitutional changes, far-reaching
in their effect, are to be submitted to the voters." (Kerby v. Luhrs
(1934) 44 Ariz. 208, 215, 36 P.2d 549, 552.) The court therefore concluded
that constitutional amendments, which must be submitted separately, "must
be construed to mean amendments which have different objects and purposes
in view. In order to constitute more than one amendment, the propositions
submitted must relate to more than one subject, and have at least two
distinct and separate purposes not dependent upon or connected with each
other....' " (Id. at p. 217, 36 P.2d at p. 553.) Similarly, in
Cambria v. Soaries, supra, 169 N.J. at page 19, 776 A.2d at p. 765, the
court held that the separate vote requirement is triggered by "two
or more changes to the constitution unless they are closely related to
More recently, in Armatta v. Kitzhaber (Or.1998) 327 Or. 250, 959 P.2d
49, the Oregon Supreme Court considered a post election challenge to an
initiative measure, in which it undertook a comprehensive review and analysis
of that state's similarly worded separate vote provision. [FN15] The
court concluded the measure had been submitted to the voters and voted
on without complying with the separate vote requirement and therefore
held the measure invalid in its entirety. (Id. at p. 284, 959 P.2d at
p. 68.) In so doing, the court stated that "as a textual matter,
the separate-vote requirement ... focuses both upon the proposed change
to the constitution, as well as the procedural form of submitted amendments."
(Id. at p. 274, 959 P.2d at p. 62.) By contrast, the court found the single-subject
requirement focuses on the content of the proposed amendments. The court
concluded that because the separate vote requirement applies only to constitutional
amendments, it "imposes a narrower requirement than does the single-subject
requirement.... Indeed, because the separate-vote requirement is concerned
only with a change to the fundamental law, the notion that the people
should be able to vote separately upon each separate amendment should
come as no surprise. In short, the requirement serves as a safeguard that
is fundamental to the concept of a constitution." (Id. at p. 276,
959 P.2d at p. 63.)
FN15. The Oregon separate vote provision provides in pertinent part:
"When two or more amendments shall be submitted ... to the voters
of this state at the same election, they shall be so submitted that each
amendment shall be voted on separately." (Or. Const., art. XVII,
§ 1, italics added.)
Accordingly, "the proper inquiry is to determine whether, if adopted,
the proposal would make two or more changes to the constitution that are
substantive and that are not closely related." (Armatta v. Kitzhaber,
supra, 327 Or. at p. 276, 959 P.2d at p. 63.) This formulation has been
adopted by at least two other states. (See Marshall v. State ex rel. Cooney
(Mont.1999) 293 Mont. 274, 282, 975 P.2d 325, 330-331; Cambria v. Soaries,
supra, 169 N.J. at p. 19, 776 A.2d at p. 765.)
3. The Conclusion
The formulation set forth in Armatta v. Kitzhaber, supra, comports with
the constitutional text, framework, historical development, and purpose
of the separate vote requirement in section 1.
As noted, the history of section 1 shows the framers intended the separate
vote requirement to apply to a particular constitutional change. The 1879
version of the provision set forth the procedures for proposing constitutional
amendments and distinguished between an amendment and amendments. While
it authorized the Legislature to propose multiple amendments, it required
that if more than one amendment were submitted at the same time, "they
shall be so prepared and distinguished, by numbers or otherwise, that
each can be voted on separately." (Former art. XVIII, § 1 (1879).)
The distinction between amendments and an amendment was carried through
until 1970 when the text was abbreviated, but as discussed, without making
a substantive change to the separate vote requirement.
The separate vote requirement ensures that the voters may consider and
vote for or against each substantive change to the fundamental law of
California without compromise. To this end, the proposed changes must
be substantively and functionally related. We therefore reject a test
that is purely quantitative, one that treats each change to a constitutional
provision as an amendment without regard to its substantive connection
to the other proposed changes. This test is so strict that it would fragment
a substantive change into its linguistic parts and fail to serve the purpose
of the separate vote requirement.
Because the Legislature's authority to propose constitutional amendments
is delegated and must be strictly construed (Livermore v. Waite, supra,
102 Cal. at p. 117, 36 P. 424), we also reject a purely formalistic or
procedural test as suggested by real party. It would render the separate
vote requirement a nullity by allowing the Legislature to submit multiple
amendments of unrelated provisions to a single vote by the people. As
such, it ignores the words of section 1, which requires a separate vote
of the people for "each amendment", not "each proposal."
It also ignores the history of the requirement, which dates to 1879, when
the Legislature did not yet have the authority to propose constitutional
revisions by ballot measure submitted to the voters.
Real party argues that this test has been used for years, citing numerous
examples of propositions proposing unrelated substantive changes to more
than one constitutional provision. However, we do not know that any of
these examples violate section 1 for no cases have been brought to test
them. "Cases are not authority ... for issues not raised and resolved."
(San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th
893, 943, 55 Cal.Rptr.2d 724, 920 P.2d 669.) Thus, the absence of any
case challenging the propositions under the separate vote requirement
is not authority for the principle that the practice comports with the
separate vote requirement.
Nor does the single subject test alone serve to fully meet the separate
vote requirement. Because section 1 does not include a single subject
clause, we must assume the framers intended the separate vote requirement
to have a different scope and application. The single subject requirement
allows amendments to be made to two or more provisions that are germane
to each other but need not be functionally related. (Senate v. Jones,
supra, 21 Cal.4th at p. 1157, 90 Cal.Rptr.2d 810, 988 P.2d 1089.) It therefore
fails to give meaning to the word "each," which precedes the
word "amendment." Additionally, it fails to fully serve the
purpose of the separate vote requirement because it would force voters
to cast a single vote for the measure despite the fact a different vote
might be cast if the amendments were submitted separately. While the separate
vote requirement necessarily includes the notion of single subject as
a component, it is a more stringent limitation, reflecting the seriousness
of amending the Constitution by requiring an examination of the relationship
between the parts of a proposed constitutional change.
As noted, the court in Livermore v. Waite described an amendment as "an
addition or change within the lines of the original instrument as will
effect an improvement, or better carry out the purpose for which it was
framed." (102 Cal. at pp. 118-119, 36 P. 424.) This definition clearly
requires consideration of the substance of the change in order to make
this determination. Thus, contrary to real party's claim that the
separate vote requirement is purely one of form rather than substance,
we find it requires an inquiry into the substance or subject of the proposed
change or changes.
We therefore conclude that the test for an amendment for purposes of the
separate vote requirement, like the test for a revision, requires a quantitative
and a qualitative analysis. The proposed changes must be substantive and
functionally related to each other so that the proposed changes provide
a coherent whole.
The changes proposed by SCA 18 would make two additions to the Constitution
that are substantive and not related at all. Accordingly, we hold that
under section 1, the proposed changes constitute two amendments that must
be prepared and submitted to the voters for separate votes.
The remaining question is whether we must direct the Secretary of State
to remove SCA 18 from the ballot or may direct the Secretary of State
to prepare and submit the proposed amendments so that each amendment can
be voted upon separately.
Petitioner contends the only remedy for ensuring compliance with the separate
vote requirement is removal of SCA 18 from the ballot. Real party argues
that we have no authority to remove SCA 18 from the ballot because section
4 of article XVIII mandates that a proposed amendment, amendments or revision
be submitted to the voters. In the alternative, real party suggests that
we could order SCA 18 be retitled "partial constitutional revision."
Neither party is correct. We have the authority in the appropriate case
to issue a writ of mandate restraining the Secretary of State from certifying
SCA 18 and causing it to be placed on the ballot. (Elec.Code, § 13314,
subd. (a)(2); Livermore v. Waite, supra, 102 Cal. 113, 36 P. 424.) However,
we need not invoke our authority to remove SCA 18 from the ballot because
a more limited remedy will serve the purposes of the separate vote requirement,
that "[e]ach amendment [be] submitted that it can be voted on separately."
We shall provide a remedy that gives meaning to section 1 (Raven v. Deukmejian,
supra, 52 Cal.3d at pp. 350-353, 276 Cal.Rptr. 326, 801 P.2d 1077) [FN16]
and harmonizes sections 1 and 4. (City and County of San Francisco v.
County of San Mateo (1995) 10 Cal.4th 554, 571, 41 Cal.Rptr.2d 888, 896
P.2d 181 [we must harmonize two constitutional provisions of equal dignity].)
FN16. As discussed, a change does not become a revision merely by classifying
it as such, and we have previously concluded that neither change proposed
by SCA 18 constitutes a revision.
Petitioners contend SCA 18 must be removed from the ballot because the
Legislature failed to comply with the two-thirds vote requirement set
forth in the first sentence of section 1. However, as we showed in Part
II, the two-thirds vote requirement is not a separate vote requirement
and therefore the Legislature did not violate section 1 by proposing two
constitutional amendments in one resolution. [FN17] Because the Legislature
did not violate its internal procedures for proposing SCA 18 as a single
resolution, there is no basis for holding it invalid as proposed. [FN18]
FN17. Petitioners assume the unit of separation is the resolution and consequently
each resolution must contain a single amendment. For reasons set forth
above, that is not the case. The Legislature may do so in that manner,
but as shown by the 1879 and 1962 versions of article XVIII, it also may
separate the multiple amendments by "numbers or otherwise" within
a resolution. We need not canvass the various means of separation so long
as the Legislature has prepared the amendments in such a fashion that
the separation can be adduced. In this case that has been done by the
form in which SCA 18 has separated its two proposed amendments in different
sections of the resolution.
FN18. Although the separate vote requirement in Armatta v. Kitzhaber, supra,
327 Or. 250, 959 P.2d 49, is virtually identical to the separate requirement
of section 1 of article XVIII, the procedural posture of Armatta was quite
different from the present case in that it involved a post election challenge
to the measure. In that posture it was not possible to separate the different
amendments because the vote was on the collective measures.
We therefore turn to the question whether we may direct the Secretary of
State to prepare the amendments proposed by SCA 18 so that each amendment
can be voted on separately. We again turn to the constitutional history.
Prior to 1970, section 1 vested the Legislature with the duty "to
submit such proposed amendment, amendments ... to the people in such manner,
and at such time, and after such publication as may be deemed expedient.
Should more amendments than one be submitted at the same election they
shall be so prepared and distinguished, by numbers or otherwise, that
each can be voted on separately." (Former § 1, (1962) 3 Deerings
Cal.Codes Annot., Const. Annot., supra, at pp. 723-724.)
In keeping with our construction of section 1 as making no substantive
change in the 1962 provisions, we read the term "submit" to
mean a submission by the Legislature. While article II, section 8, subdivision
(d) prohibits an "initiative measure embracing more than one subject
... [from being] submitted to the electors or hav[ing] any effect,"
section 4 of article XVIII mandates that a proposed amendment be submitted
for a vote of the People. When read in light of and harmonized with section
1, these two provisions of article XVIII (§ § 1 and 4) require
that constitutional amendments proposed by the Legislature be prepared
and submitted by the Legislature to the voters in such a form that the
separate vote requirement can be satisfied.
Although the Legislature has not submitted the two amendments in separate
resolutions, it has prepared SCA 18 in such a way that we may discern
its intent to do so. The title announces that it proposes two constitutional
amendments and they are separately set out as separate sections of the
resolution. That satisfies the Legislature's responsibility and permits
the Secretary of State to perform the ministerial duty of placing the
separate amendments on the ballot for a separate vote.
Nevertheless, at oral argument, counsel for real party argued that the
Legislature passed SCA 18 as a single measure and intended that both amendments
be submitted to the voters as a single measure, implying that the Legislature
would not have passed the resolution had it known the two amendments would
be submitted to the voters separately. Counsel therefore advised us that
if the Legislature's argument is rejected, the remedy should be the
removal of SCA 18 from the ballot. [FN19]
FN19. Relying on Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607,
47 Cal.Rptr.2d 108, 905 P.2d 1248, the dissent argues that by directing
the Secretary of State to separate the two proposed amendments for submission
to the voters, we have overstepped our judicial authority by making a
substantive change to the form of the legislative proposal. The dissent
is mistaken in its reliance on Kopp and in its assumption that we have
made any substantive change to SCA 18.
Kopp involved Proposition 73, which made several changes to the Government
Code relating to campaign finance reform. One of the provisions restricted
the amount of money a person or specified group could contribute per fiscal
year. The federal court had previously held that provision violated the
Federal Constitution. (11 Cal.4th at p. 614, 47 Cal.Rptr.2d 108, 905 P.2d
1248.) The issue framed by the court was, "may, and if so, should,
the statutes be judicially reformed in a manner that avoids the fiscal
year measure?" (Ibid.) The court began by rejecting "the view
that a court lacks authority to rewrite a statute in order to preserve
its constitutionality or that the separation of powers doctrine ... invariably
precludes such judicial rewriting." (Id. at p. 615, 47 Cal.Rptr.2d
108, 905 P.2d 1248.) It then set forth and applied the two-pronged test
that "a court may reform a statute to satisfy constitutional requirements
if it can conclude with confidence that (i) it is possible to reform the
statute in a manner that closely effectuates policy judgments clearly
articulated by the enacting body, and (ii) the enacting body would have
preferred such a reformed version of the statute to invalidation of the
Because SCA 18 is not a statute, the Legislature is not the enacting body,
and we have not reformed the text of the proposed amendments or otherwise
made any substantive changes to them, the test applied in Kopp does not
assist us in determining the appropriate remedy. Moreover, as previously
discussed, there is no constitutional basis to invalidate SCA 18 as proposed
or to direct that it be removed from the ballot. By contrast, the remedy
we provide is required under the express terms of article XVIII.
We need not address the merits of this argument because the Legislature
retains a remedy to forestall placement of SCA 18 on the ballot as a single
measure under section 1, which authorizes the Legislature to amend or
withdraw its proposal. "The Legislature by rollcall vote entered
in the journal, two-thirds of the membership of each house concurring,
may propose an amendment ... of the Constitution and in the same manner
may amend or withdraw its proposal." (§ 1, italics added.) This
provision was added to section 1 in 1970 by Proposition 16. The analysis
in the Ballot Pamphlet described the proposed addition as "authorizing
the Legislature, by a two-thirds vote of the membership of each house,
to amend or withdraw a constitutional amendment ... which the Legislature
has proposed where the action is taken before the proposal has been voted
on by the electorate." (Ballot Pamp., Gen. Elec. (Nov. 3, 1970) Proposed
Amends. to Cal. Const., General Analysis by Legislative Counsel, pp. 27-28.)
Thus, if the Legislature desires to remove SCA 18 from the ballot in lieu
of the submission of separate amendments, it may do so by voting to withdraw
either or both of the proposed amendments before they have been placed
on the ballot.
In the absence of such a vote, section 4 mandates that the amendments proposed
by SCA 18 be placed on the ballot and section 1 mandates that they be
submitted so they can be voted on separately. As discussed above, the
Legislature has prepared SCA 18 in such a way, by segregating the two
amendments in sections, that we may direct that they be submitted separately
to the voters. By statute, the duty of preparing the ballot pamphlets
and assigning a number to each statewide measure to be voted upon falls
to the Secretary of State. [FN20] We shall therefore direct the Secretary
of State to prepare each amendment as a separate measure on the ballot
so that each may be voted upon separately.
FN20. A proposed constitutional amendment "submitted to a popular
vote" is defined as a measure. (Elec.Code, § 329.) The ballot
pamphlet must contain each measure identified by number and title (Elec.Code,
§ § 9040, 9053, 9086, 13116, subd. (a), 13117) and the duty
of preparing the ballot pamphlets and causing them to be printed is vested
in the Secretary of State. (Elec.Code, § § 9081, 9082.) It is
the duty of the Secretary of State to assign separate numbers to the ballot measures.
Let a peremptory writ of mandate issue directing respondent Kevin Shelley,
Secretary of State, to prepare the ballot for the November 2, 2004, statewide
general election, so that section 5 of article II and section 9 of article
III, as proposed in SCA 18, will be submitted to the voters as separate
measures to be voted on separately. Petitioners are awarded their costs
in these proceedings. (Cal. Rules of Court, rule 56.4(a).) The alternative
writ is discharged. In order to prevent the frustration of the relief
granted, the decision of this court shall be final forthwith. (Cal. Rules
of Court, rule 24(b)(3).)
I concur: SCOTLAND, P.J.
DAVIS, J., concurring and dissenting.
I subscribe to the reasoning of the majority opinion until it reaches the
question of remedy. At that point, I must respectfully part company because
I believe its resolution is an impermissible intrusion into constitutional
prerogatives reserved for the legislative branch. It mistakenly treats
the legislatively conjoined amendments as nothing more than a "to-do"
list for the Secretary of State (Secretary), who then ticks off amendments
one by one as he prepares ballot measures for each.
The majority effectively assigns full responsibility to the Secretary for
ensuring compliance with the constitutional dictate that "[e]ach
amendment shall be so prepared and submitted that it can be voted on separately."
(Cal. Const., art. XVIII, § 1 (section 1).) It is true that historically
the Legislature has designated the Governor, then later the Secretary,
with the ministerial responsibilities involved in executing its directives
to submit constitutional amendments to the electors for approval. (Elec.Code,
§ 9080 et seq.; see Stats. 1883, ch. XXIX.) But it transgresses the
fundamental principles underlying our uniquely American concept of the
"separation of powers" to suppose that an executive officer,
either sua sponte or at the direction of the judiciary, can make substantive
changes to the form of a legislative proposal in order to bring it into
compliance with the separate-vote requirement.
The initiation of a constitutional amendment is a species of legislative
enactment. (People v. Curry (1900) 130 Cal. 82, 89, 62 P. 516 [proposed
amendment not within purview of proclamation for extraordinary session
of Legislature].) Even without the separate-vote prescription of section
1, it would seem to be axiomatic that the separation of powers would preclude
the Secretary, either sua sponte or at the command of the judiciary, from
combining separately proposed constitutional amendments into a single
ballot measure. This is no less true where the Legislature has erroneously
combined unrelated amendments.
Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 47 Cal.Rptr.2d
108, 905 P.2d 1248 (Kopp ) carefully circumscribed the judicial power
to alter legislative enactments for the purpose of making them comply
with constitutional requirements (rather than invalidating them in toto).
The touchstone is consistency with legislative intent. A court may hazard
the interface between legislative and judicial powers only where it can
conclude "with confidence" that an alteration effects "clearly
articulated" legislative policy judgments and that the Legislature
would prefer the altered form to invalidation. This remedy is unavailable
where it would be inconsistent with legislative intent or where the intent
is unascertainable. (Id. at pp. 615, 626, 643, 655-656, 660-661, 47 Cal.Rptr.2d
108, 905 P.2d 1248.)
In the present case, the Legislature's representative at oral argument
unequivocally rejected the majority's proposed remedy, but this express
intent goes unheeded. Even if we may properly ignore this post hoc declaration,
the majority still runs afoul of Kopp 's strictures. The majority
purports to infer legislative intent from the structure of the proposal,
but this is equivocal: the title describes it as "A resolution to
propose ... an amendment to the Constitution" (italics added) by
the amendment of the two sections thereof; in the body, it then introduces
the two amendments with a "First--" and a "Second--."
(Sen. Const. Amend. No. 18, Stats. 2004 (2003-2004 Reg. Sess.) res. ch.
103.) This is hardly a clearly articulated intent allowing us to conclude
with confidence that both amendments should have independent viability,
and thus, under Kopp, we should not attempt to exercise the power to direct
the Secretary to make this alteration.
What is true as a matter of separation of powers and the alteration of
legislation is also true in the context of judicial review of the electorate's
enactments. I have not found a preelection single-vote case that takes
the majority's tack. To the extent (as the majority has discussed)
that the single-subject rule protects similar interests, there has never
been a case suggesting that the Secretary can engage in splitting an initiative
and thus bypass the qualifying requirements; to the contrary, "If
the drafters ... wish to place such unrelated proposals before the voters,
the constitutionally permissible means to do so is through the submission
and qualification of separate initiative measures, rather than the 'take
it or leave it' approach embodied in Proposition 24." (Senate
of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1168, 90 Cal.Rptr.2d
810, 988 P.2d 1089.) Nor may a court sever one provision and invalidate
the rest, because severance is not an expressly available remedy for a
violation of the single-subject rule. (Ibid., citing California Trial
Lawyers Assn. v. Eu (1988) 200 Cal.App.3d 351, 361-362, 245 Cal.Rptr.
916.) As section 1 also lacks any express provision for the preelection
splitting or severing of improperly conjoined amendments, we should avoid
I also do not find any support in authority undertaking the postelection
review of a flawed electoral enactment, an analogous context in that a
proposed amendment represents a "postelection" review of the
outcome of a legislative vote. Particularly where fortified with the presence
of a severability clause, a court will sustain the valid portion of an
enactment only where it is grammatically severable, capable of independent
application, and the enacting body would have adopted it independently
of the rest. (People's Advocate, Inc. v. Superior Court (1986) 181
Cal.App.3d 316, 330- 333, 226 Cal.Rptr. 640, cited with approval in Calfarm
Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821-822, 258 Cal.Rptr. 161,
771 P.2d 1247.) Lacking omniscient clairvoyance, a court could not resolve
the latter criterion when confronted with a violation of the single-vote
rule (or the single-subject rule, for that matter).
The potential future repercussions of the majority's remedy are staggering.
Not only does the majority disregard legislative intent, it countenances
an evasion of the constitutional constraints on the exercise of the legislative
power. (Cf. MWAA v. CAAN (1991) 501 U.S. 252, 274-277, 111 S.Ct. 2298,
115 L.Ed.2d 236; INS v. Chadha (1983) 462 U.S. 919, 948-951, 103 S.Ct.
2764, 77 L.Ed.2d 317.) Dividing the improperly conjoined amendments achieves
what some proponents could not otherwise. The narrow vote tallies in the
two legislative chambers indicate that placement of the amendments as
individual proposals on the ballot does not command the votes of 54 assembly
members and 27 senators. The majority's remedy therefore furthers
possible logrolling rather than imposes a sanction against it. In future
cases, the majority's remedy would allow a faction of those voting
for a conjoined set of amendments to accomplish with stealth what could
not be secured through the legislative process; namely the separate enactment
of an amendment. Those members and their allies could do so by later persuading
the Secretary or the judiciary to extract their favored amendment for
individual consideration. This pragmatic remedy should not be invoked
in the context of the fundamental organic law of the state, where the
Legislature must comply strictly with the procedure for amendment. (Livermore
v. Waite (1894) 102 Cal. 113, 117-118, 36 P. 424.)
Article XVIII itself provides the proper remedy: the Legislature "in
the same manner may amend or withdraw its proposal." (§ 1.)
Upon learning from our opinion that it cannot propose "partial revisions,"
the Legislature can expeditiously vote to amend its proposal into two
separate ballot measures if that is the desire of two-thirds of its membership.
Ironically, the majority's remedy has stood this constitutionally
prescribed process on its head. By judicial fiat, the majority has supplanted
the legislative prerogative of deciding whether to withdraw or amend its
proposal. This court has made that choice for the Legislature by deciding
that one or both of these two amendments can be enacted by the voters
regardless of the fate of the other. It will require a two-thirds vote
of each house of the Legislature to undo this court's well-intentioned
but wrongheaded foray into legislative decisionmaking. Instead of voting
on whether to withdraw its own proposal, the Legislature must garner a
two-thirds vote to withdraw this court's proposal. This may very well
be a politically unrealistic task for the reasons I have previously alluded to.
I therefore do not believe it is proper to infer from section 1 the remarkable
delegation of legislative authority to the Secretary, or to assume this
power ourselves. What the Legislature hath joined, let no one put asunder.