American Federation of Labor v. Eu

• Decision Date: 27 August 1984
• Docket Number: LABOR-CONGRESS,S.F. 24746
• Citation: 36 Cal.3d 687,206 Cal.Rptr. 89,686 P.2d 609
• Court: California Supreme Court
• Parties: , 686 P.2d 609 AMERICAN FEDERATION OFOF INDUSTRIAL ORGANIZATIONS et al., Petitioners, v. MARCH FONG EU, as Secretary of State, etc., et al., Respondents; Lewis K. UHLER, Real Party in Interest.

Page 89

206 Cal.Rptr. 89

36 Cal.3d 687, 686 P.2d 609

AMERICAN FEDERATION OF LABOR-CONGRESS OF INDUSTRIAL ORGANIZATIONS et al., Petitioners, v. MARCH FONG EU, as Secretary of State, etc., et al., Respondents Lewis K. UHLER, Real Party in Interest.

S.F. 24746.

Supreme Court of California In Bank.

Aug. 27, 1984.

As Modified Oct. 25, 1984.

Marsha S. Berzon, Fred H. Altshuler, Michael Rubin, George C. Harris, Altshuler & Berzon, San Francisco, and Laurence Gold, Washington, D.C., for petitioners.

Douglas E. Mirell, Los Angeles, Roger M. Witten, Wilmer, Cutler & Pickering, Washington, D.C., Steven L. Mayer and Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, as amici curiae on behalf of petitioners.

John K. Van de Kamp, Atty. Gen., and N. Eugene Hill, Asst. Atty. Gen., for respondents.

Nielsen, Hodgson, Parrinello & Mueller, John E. Mueller and Marguerite Mary Leoni, San Francisco, for real party in interest.

Ronald A. Zumbrun, John H. Findley, Jonathan M. Coupal, Sacramento, Robert

A. Destro, Washington, D.C., Clint Bolick, Maxwell A. Miller, Denver, Colo., K. Preston Oade, Jr., Birmingham, Mich., and E. Robert Wallach, San Francisco, as amici curiae on behalf of real party in interest.

Anthony Miller, Chief Deputy Secretary of State, Sacramento, for respondent Secretary of State.

Thomas J. Owen, Deputy City Atty., San Francisco, for respondent City & County of San Francisco.

BROUSSARD, Justice.

This is an original petition for writ of mandate to order respondent Eu, the Secretary of State of the State of California, to refrain from taking any action, including the expenditure of public funds, to place the proposed Balanced Federal Budget Statutory Initiative on the November 1984 ballot. ¹ The principal effect of the proposed initiative would be to compel the California Legislature, on penalty of loss of salary, to apply to Congress to convene a constitutional convention for the limited and singular purpose of proposing an amendment to the United States Constitution requiring a balanced federal budget. If the Legislature fails to act, the Secretary of State is directed to apply directly to Congress on behalf of the people of the State of California.

The Fifth Article to the United States Constitution sets out two alternative methods of proposing constitutional amendments. ² It provides in relevant part, that "[t]he Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by Congress ..." ³

In the two centuries since the Constitution was promulgated, it has been amended only twenty-six times. Each of those amendments was proposed by the Congress. (All but one were ratified by state legislatures; the Twenty-first Amendment was ratified by state conventions.) Although there have been many efforts to call a constitutional convention to propose amendments, all have failed to secure applications by the legislatures of the necessary two-thirds of the states. ⁴

In recent years a number of persons, including the current President, have urged the enactment of a constitutional amendment requiring a balanced federal budget. Numerous bills have been introduced in Congress. Although the Senate on one occasion approved a proposed constitutional amendment by the necessary two-thirds vote, the measure failed in the House of Representatives; thus the proposed amendment has never been submitted to the states for ratification.

In the meantime, proponents of the amendment attempted to avoid the necessity for congressional approval by resorting to the alternative method of proposing constitutional amendments--a convention called upon application of two-thirds of the states. As of this writing the legislatures in 32 of the necessary 34 states have formally applied to the Congress to call such a convention. ⁵

Following this strategy, proponents have regularly introduced resolutions in the California Legislature calling for a convention to propose a balanced budget amendment. The Legislature has held hearings on some of these measures, but it has declined to adopt any resolution calling for a federal constitutional convention. The supporters of the balanced budget amendment now seek to compel action by the California Legislature by popular initiative. ⁶

The proposed initiative reads as follows:

"INITIATIVE MEASURE TO BE SUBMITTED DIRECTLY TO THE VOTERS. Section One. (a) The People of the State of California hereby mandate that the California Legislature adopt the following resolution and submit the same to the Congress of the United States under the provisions of Article V of the Constitution of the United States:

"That the Congress of the United States is urged to propose and submit to the several states an amendment to the Constitution of the United States to require, with certain exceptions, that the federal budget be balanced; and

"That application is hereby made to the Congress of the United States, pursuant to Article V of the Constitution of the United States, to call a convention for the sole purpose of proposing an amendment to the Constitution of the United States to require, with certain exceptions, that the federal budget be balanced; and

"If the Congress of the United States proposes an amendment to the Constitution of the United States identical in subject matter to that contained herein and submits same to the States for ratification, this application shall no longer be of any force and effect; and

"This application shall be deemed null and void, rescinded and of no effect in the event that such convention not be limited to such specific and exclusive purposes; and

"This application constitutes a continuing application in accordance with Article V of the Constitution of the United States until at least two-thirds of the several States have made similar applications pursuant to Article V of the United States Constitution;

"(b) The Secretary of the Senate is hereby directed to transmit copies of this application, upon its adoption by the California Legislature, to the President and Secretary of the United States Senate and the Speaker and Clerk of the House of Representatives of the Congress of the United States.

"Section Two. The following is added to sections 8901 through 8903 and section 9320 of the Government Code and shall modify, amend or control any other laws or regulations of the State of California similar in subject matter, heretofore or hereinafter enacted:

"... If the California Legislature fails to adopt the resolution set forth in Section One of [this] initiative measure and submit same to the Congress of the United States, as required therein, on or before the end of the twentieth (20th) legislative day after approval by the people of the said initiative measure, or if the legislature adjourns or recesses during the regular session prior to the twentieth (20th) legislative day without adopting said resolution, or having adopted same, repeals, rescinds, nullifies or contradicts said resolution, all payments, compensation, benefits, expenses, perquisites and any other payments to any member of the California Legislature made pursuant to this Section shall be suspended as to each and every legislator until such time as the California Legislature adopts such resolution....

"Section Three. (a) The people of the State of California hereby adopt the resolution set forth in Section One of this initiative measure; and (b) If the California Legislature fails to adopt the resolution set forth in Section One of this initiative measure within forty (40) legislative days of the approval of this initiative measure, the Secretary of State of California shall transmit the resolution adopted pursuant to this Section to the President and Secretary of the United States Senate and the Speaker and Clerk of the House of Representatives of the Congress of the United States.

"Section Four. [Limits legislative amendment of the initiative.]

"Section Five. If any section or subsection of this initiative or the aforementioned resolution shall be held invalid, the remainder of the initiative and the aforementioned resolution, to the extent they can be given effect, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby, and to this end the provisions of this chapter are severable."

On March 18, 1984, respondent Secretary of State certified that the proposed initiative had received sufficient signatures to appear on the November 1984 ballot. Petitioners, organizations and individual California taxpayers opposed to the initiative, ⁷ filed an original action in this court for writ of mandamus. We scheduled a special calendar to consider the matter before the ballots were printed for the forthcoming election.

We have concluded that the initiative, to the extent that it applies for a constitutional convention or requires the Legislature to do so, does not conform to article V of the United States Constitution. Article V provides for applications by the "Legislatures of two-thirds of the several States," not by the people through the initiative; it envisions legislators free to vote their best judgment, responsible to their constituents through the electoral process, not puppet legislators coerced or compelled by loss of salary or otherwise to vote in favor of a proposal they may believe unwise.

We also conclude that the measure exceeds the scope of the initiative power under the controlling provisions of the California Constitution (...