Assembly v. Deukmejian

• Decision Date: 28 January 1982
• Docket Number: S,S.F. 24354 and S,S.F. 24348
• Citation: 180 Cal.Rptr. 297,30 Cal.3d 638
• Court: California Supreme Court
• Parties: , 639 P.2d 939 ASSEMBLY OF the STATE OF CALIFORNIA et al., Petitioners, v. George DEUKMEJIAN, as Attorney General, etc., et al., Respondents, Tirso DEL JUNCO, as Chairman, etc., et al., Real Parties in Interest. (two cases) Phillip BURTON, as United States Congressman, et al., Petitioners, v. March FONG EU, as Secretary of State, etc., et al., Respondents, Tirso DEL JUNCO, as Chairman, etc., et al., Real Parties in Interest. SENATE OF the STATE of California et al., Petitioners, v. March FONG EU, as Secretary of State, etc., et al., Respondent, Tirso DEL JUNCO, as Chairman, etc., et al., Real Parties in Interest. F. 24349,F. 24356.

Page 297

180 Cal.Rptr. 297

30 Cal.3d 638, 639 P.2d 939

ASSEMBLY OF the STATE OF CALIFORNIA et al., Petitioners, v. George DEUKMEJIAN, as Attorney General, etc., et al., Respondents,

Tirso DEL JUNCO, as Chairman, etc., et al., Real Parties in Interest. (two cases)

Phillip BURTON, as United States Congressman, et al., Petitioners, v. March FONG EU, as Secretary of State, etc., et al., Respondents, Tirso DEL JUNCO, as Chairman, etc., et al., Real Parties in Interest.

SENATE OF the STATE of California et al., Petitioners, v. March FONG EU, as Secretary of State, etc., et al., Respondent, Tirso DEL JUNCO, as Chairman, etc., et al., Real Parties in Interest.

S.F. 24348, S.F. 24349, S.F. 24354 and S.F. 24356.

Supreme Court of California, In Bank.

Jan. 28, 1982.

Joseph Remcho, Robin B. Johansen, Kathleen J. Purcell, Mitchell Zimmerman, Nina R. Rivkind, Rosen & Remcho, Charles C. Marson, Steven F. Shatz and Kristen D. Balloun, San Francisco, for petitioners in Nos. 24348 and 24349.

Irell & Manella, Richard H. Borow, Los Angeles, Jonathan H. Steinberg, Santa Monica, Sheldon E. Eisenberg, Beverly Hills, and Daniel Hays Lowenstein, Sacramento, for petitioners in No. 24354.

Ervin, Cohen & Jessup, Allan Browne, Beverly Hills, Tuohey & Barton, Conrad G. Tuohey, Santa Ana, and Teresa M. Ferguson, Fullerton, for petitioners in No. 24356.

Vilma S. Martinez, Morris J. Baller, San Francisco, John E. Huerta, Angel Manzano, Jr., Los Angeles, Maria Rodriguez, San Francisco, Linda Wong, Los Angeles, Elizabeth Meyer, Sideman, Meyer, Franco & Modrak, San Diego, as amici curiae on behalf of petitioners.

George Deukmejian, Atty. Gen., Richard D. Martland, Asst. Atty. Gen., Robert Burton and Geoffrey L. Graybill, Deputy Attys. Gen., for respondent Attorney General.

Anthony L. Miller, Richard B. Maness and William P. Yee, Sacramento, for respondent Secretary of State.

John H. Larson, County Counsel, and Philip H. Hickok, Deputy County Counsel, Los Angeles, for respondent Los Angeles County Registrar of Voters.

Gibson, Dunn & Crutcher, Robert S. Warren, John J. Swenson, Mary Laura Davis, Robert E. Cooper, Daniel M. Kolkey, Los Angeles, Gregg A. Amber, Manhattan Beach, Musick, Peeler & Garrett, Los Angeles Michael J. Brady, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Redwood City, Clifford, Jenkins & Brown, Arnold Anchordoquy, Bakersfield, Falsetti, Crafts, Pritchard & Darling and Scott Edward Darling, Riverside, as amici curiae on behalf of real parties in interest.

Charles E. Wiggins, Newport Beach, Sheppard, Mullin, Richter & Hampton, John A. Sturgeon, Charles W. McCoy, Jr., Los Angeles, Dobbs & Nielsen, James R. Parrinello, San Francisco, John E. Mueller, Los Angeles, and Marguerite Mary Leoni, San Francisco, for real parties in interest.

Michael J. Halliwell, Ph.D. and Mark A. Wasser, County Counsel, Madera, as amicus curiae.

BIRD, Chief Justice.

These consolidated mandate proceedings raise difficult questions concerning referenda challenges to the 1981 Congressional, Senate and Assembly reapportionment statutes passed by a majority of the Legislature and signed by the Governor. (Stats.1981, chs. 535, 536, 537.)

(1) Are the referendum petitions defective because, in violation of Elections Code section 3516, subdivision (c), they required the signer to use his or her "address as registered to vote" rather than "residence address," thereby making it impossible for election officials to determine if the signers were qualified registered voters?

(2) Even if the petitions contain a substantial defect, should the court allow them to qualify so the referenda may be voted upon by the people of this state?

(3) Even if the petitions would otherwise technically qualify, may the referendum process be used to challenge reapportionment statutes? Does the stay provision of the referendum section of the state Constitution apply to the effective date of the reapportionment statutes?

(4) If the referenda stay the effect of the 1981 reapportionment statutes, how should the 1982 elections be conducted? Should the old, unconstitutional districts be adopted by this court and used in the 1982 elections? Should the court defer to the Legislature and adopt the newly drawn, equally apportioned districts enacted by the Legislature and signed into law by the Governor? If the court has no choice but to mandate the use of the 1981 congressional reapportionment plan, is there a legally compelling reason why the court should not also use the 1981 Assembly and Senate reapportionment plans?

I. STATEMENT OF FACTS

In September 1981, the Legislature passed three reapportionment statutes revising the boundaries of the state's Congressional, Senate and Assembly districts respectively to conform to the results of the 1980 federal census. ¹ These statutes were signed by the Governor and enrolled into law by the Secretary of State on September 16, 1981.

That same day, real parties in interest, the chairman of the California Republican Party and the Republican National Committee, began a petition drive aimed at qualifying for the ballot a referendum on each of these reapportionment statutes. (See Cal. Const., art. II, §§ 9, 10.) ²

The Attorney General prepared titles and summaries to appear on the face of the referenda. (See Cal. Const., art. II, § 10, subd. (d); Elec.Code, § 3503.) ³ The summaries stated that if signed by the requisite number of electors, the petitions would require the reapportionment statutes to be placed on the ballot for approval or rejection by the voters and would prevent the statutes from taking effect unless approved by a majority vote.

On November 18, 1981, real parties submitted their completed petitions to the Secretary of State. On December 15, the Secretary of State announced that the petitions contained the requisite number of signatures. (See Cal. Const., art. II, § 9, subd. (b) [petitions must contain signatures equalling 5 percent of the votes cast for all candidates for governor at the last gubernatorial election].) However, she also announced that she was refraining from directing the county clerks to place the referenda on the June ballot, pending this court's resolution of these mandate proceedings. (See §§ 3520-3523.) In the interim, she directed the county clerks and registrars to prepare to conduct the primary election under either the old election boundaries or the new districts approved by the Legislature. ⁴

The instant mandate proceedings were filed by various members of the Assembly, Senate and House of Representatives and other interested parties. Petitioners attack defects in the referendum petitions which, they allege, render the petitions invalid. They also assert that even if the petitions are valid, the referenda do not operate to stay the implementation of the new reapportionment statutes. Petitioners seek writs of mandate compelling state and local officials to omit the referenda from the June ballot and to use the new districts in the 1982 elections. Mandate is an appropriate remedy under these circumstances. (See Gage v. Jordan (1944) 23 Cal.2d 794, 800, 147 P.2d 387 [mandate proper to compel Secretary of State to omit initiative measure from ballot]; Legislature v. Reinecke (Reinecke I) (1972) 6 Cal.3d 595, 99 Cal.Rptr. 481, 492 P.2d 385.)

This court issued alternative writs of mandate to resolve the impasse.

II. CHALLENGES TO THE REFERENDUM PETITIONS

Petitioners contend that the referendum petitions fail to comply with several requirements of the Elections Code and are, therefore, fatally defective. The most serious of these asserted flaws is the failure of the petitions to require a signer to affix his or her residence address, as mandated by section 3516, subdivision (c). ⁵

The referendum petitions were circulated by two methods: direct mail and public distribution by hand. Neither version contained a "residence address" instruction. Instead, both versions provided a space for each signer to affix an address, with the words "YOUR ADDRESS AS REGISTERED TO VOTE" printed beneath. In addition, the cover of the direct mail version, which was sent to all Republican voters at their addresses as registered, bore the following directions: "ATTENTION! .... WHEN SIGNING YOUR PETITION, PLEASE USE THE NAME AND ADDRESS INFORMATION EXACTLY AS IT IS LISTED HERE (EVEN IF INCORRECT ) TO INSURE YOUR PETITIONS QUALIFY...." (Emphasis added.) ⁶

Nowhere do the referendum petitions specifically call upon signers to provide the "residence address" information required by section 3516, subdivision (c). The reason for this requirement is quite simple. With minor exceptions, an individual must continue to reside at the address stated in his or her affidavit of registration in order to be qualified to vote. (See generally, Elec. Code, div. 1, ch. 2, §§ 300-320.) It is the duty of the county clerk or registrar of voters to compare a signer's current residence address on the petition with that individual's address as registered to vote in the records of registration maintained by the county clerk. If the addresses match, the requirement of section 3516 that the signer be "a qualified registered voter at the time of signing the petition" has been satisfied. However, without the petition signer's current residence address on the petition, it is impossible for the clerk to determine whether the signer was a "qualified registered voter." ⁷

In the case of the petitions circulated by real parties, if the signer dutifully followed the instructions on those petitions and provided his or her "address as registered to vote" or "address ... as it is listed here (even if incorrect)," the address on the petition and the address in the records of registration would automatically be the same. Thus the clerk, whose examination is limited to a comparison of the petition and the records of registration, ⁸ can come to no Of course, that determination may not be correct. The signer may have moved to a new residence...