Brosnahan v. Eu, S.F. 24393

• Citation: 641 P.2d 200,181 Cal.Rptr. 100,31 Cal.3d 1
• Decision Date: 11 March 1982
• Docket Number: S.F. 24393
• Court: United States State Supreme Court (California)
• Parties: , 641 P.2d 200 James BROSNAHAN et al., Petitioners, v. MARCH FONG EU, as Secretary of State, etc., et al., Respondents; Paul GANN et al., Real Parties in Interest.

Page 100

181 Cal.Rptr. 100

31 Cal.3d 1, 641 P.2d 200

James BROSNAHAN et al., Petitioners, v. MARCH FONG EU, as Secretary of State, etc., et al., Respondents Paul GANN et al., Real Parties in Interest.

S.F. 24393.

Supreme Court of California.

March 11, 1982.

Ephraim Margolin, William Mount, San Francisco, Laurance S. Smith and Brent A. Barnhart, Sacramento, for petitioners.

Anthony L. Miller, Richard B. Maness and William P. Yee, Sacramento, for respondents.

Dobbs & Nielsen, John E. Mueller, James R. Parrinello and Marguerite M. Leoni, San Francisco, for real parties in interest.

BY THE COURT:

In this proceeding petitioners seek to prevent respondent Secretary of State from instituting measures preparatory to placing on the ballot at the June 1982 primary election an initiative measure relating to "Criminal Justice" and entitled (in § 1 thereof) "The Victims' Bill of Rights." Petitioners assert that respondent has failed to comply with certain statutory provisions regarding the number of valid signatures required to qualify the measure for the ballot, and that the proposed measure is unconstitutional because it contains more than one subject (Cal.Const., art. II, § 8, subd. (d)) and amounts to a "revision" of the Constitution rather than an "amendment" thereto (see id., art. XVIII, §§ 1-3).

The proponents of the initiative measure duly presented to the appropriate public officials petitions containing 663,409 signatures. The number of valid signatures necessary to qualify the measure for the ballot under article II, section 8, subdivision (b), of the Constitution is 553,790. Upon examination of the certificates submitted by county officials on the basis of the random sampling provided for in the Elections Code, respondent determined that the petitions contained 108.76 percent of the number of signatures required for a place on the ballot. Respondent refused to take steps to submit the measure to the voters on the ground that the number of valid signatures disclosed by the sample fell short of the 110 percent then required by section 3520, subdivision (g). Instead, she ordered local election officials to verify each signature.

The proponents of the measure, real parties in interest in the present proceeding, sought a writ of mandate before the Superior Court of Sacramento County to compel respondent to certify the initiative as having qualified for the ballot, and to take the steps required by law to place it before the voters. Respondent took the position that, although she was prohibited by law from certifying the petitions because random sampling indicated fewer than 110 percent valid signatures, she was nevertheless of the opinion that the 108.76 percent valid signatures found on the petitions constituted substantial compliance with the requirement of the Elections Code to qualify the measure for the ballot without the need for verification of each signature. Following entry of a judgment, stipulated by the parties, to the effect that real parties had substantially complied with the requirements of the Elections Code so as to qualify the initiative for the ballot, a writ of mandate was issued by the trial court directing respondent to certify the initiative for the June 8, 1982, Primary Election, and to take other steps required by law to place the measure before the voters in that election.

Thereafter, petitioners, who are electors in various counties of the state, filed with us an original petition for writ of mandate and prohibition to prevent respondent from certifying the initiative and to restrain her from performing any act in aid of submission of the measure to the voters. Because of the importance of the questions presented and the time constraints involved, we issued an alternative writ of mandate and expedited briefing and oral argument. (Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 808, 114 Cal.Rptr. 577, 523 P.2d 617 and cases cited.) We also issued a stay prohibiting enforcement of the trial court's writ of mandate pending final disposition of the present proceeding.

While this litigation was pending, the Legislature passed, and the Governor signed, an urgency measure (Stats. 1982, ch. 102) providing that if, on or before January 28, 1982, the Secretary of State received from the several county clerks certificates, based on a random sampling technique, establishing that the number of valid signatures affixed to an initiative petition is more than 105 percent of the number of qualified voters needed, the petition shall be deemed to have qualified for the ballot. The Secretary of State received such certificates on or before January 28, 1982.

We conclude that the initiative measure should be placed on the ballot of the June 1982 primary election.

We do not reach the other issues raised by petitioners. As we have frequently observed, it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity. (E.g., Mulkey v. Reitman (1966) 64 Cal.2d 529, 535, 50 Cal.Rptr. 881, 413 P.2d 825; Wind v. Hite (1962) 58 Cal.2d 415, 417, 24 Cal.Rptr. 683, 374 P.2d 643; Gayle v. Hamm (1972) 25 Cal.App.3d 250, 256-257, 101 Cal.Rptr. 628.)

The stay of enforcement of the judgment in Sacramento Superior Court, No. 301007, is vacated, and the peremptory writs of mandate and prohibition are denied. The judgment is final forthwith.

NEWMAN, J., dissents.

BROUSSARD, Justice, concurring.

Article II, section 8 of the California Constitution states that "an initiative measure embracing more than one subject may not be submitted to the electors or have any effect." (Italics added.) Thus, the question whether the proposed criminal justice initiative violates the single subject requirement is one which under normal circumstances should be decided before the initiative is submitted to the electorate. The Constitution recognizes, however, that it may be impractical to decide whether an initiative violates the single subject requirement before it is submitted to the voters, and therefore provides that an initiative which does not conform to that requirement, even if approved by a majority, shall not "have any effect."

Unfortunately, present circumstances compel an immediate decision as to whether the measure will go on the ballot. Time is lacking for the careful study and consideration, the collegial discussion, and the mutual criticism of opinion drafts which an issue of this importance requires. I therefore join the By the Court opinion with the understanding that it in no way precludes review of the single subject issue subsequent to the June 1982 Primary Election.

MOSK, Justice, concurring and dissenting.

I.

With unseemly haste and overlooking conflicting code sections (e.g., Elec.Code § 3521, subd. (a)), the Legislature has attempted to decide a pending lawsuit by the remarkable method of adopting an urgency statute which in actuality applies only to this proposed initiative and to no other, past, present or future.

At the very least, the preferential treatment accorded the proponents of this measure severely taxes article I, section 7, subdivision (b), of the Constitution, which provides that a "citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens." More broadly, the legislative preference granted only to these proponents suggests that varying numerical standards for the qualification of initiatives prevail in this state, dependent solely upon whether the legislators like or dislike a proposal to be voted on by the people.

Despite my misgivings, however, I doubt the wisdom of this court, or any court, probing behind a measure adopted by the Legislature and signed by the Governor. (People v. County of Santa Clara (1951) 37 Cal.2d 335, 337, 231 P.2d 826; Spaulding v. Desmond (1922) 188 Cal. 783, 790, 207 P. 896.) In deference to the legislative determination that the law be changed to accommodate the proponents of this petition, I concede that the initiative measure--under the newly created standard--meets the ballot mathematical requirement.

II.

Unlike the majority, however, I believe we are required to reach petitioners' second contention: that the criminal justice initiative violates the constitutional command that "an initiative measure embracing more than one subject may not be submitted to the electors or have any effect." (Art. II, § 8, subd. (d).) Before analyzing the merits of this claim, I deal with the opinion of the majority that the proper time to address constitutional challenges to the initiative is when and if it becomes law.

The principle is firmly established that unless it is clear that a proposed initiative is unconstitutional, the courts should not interfere with the right of the people to vote on the measure. In the service of this precept, courts have frequently declined to strike an initiative from the ballot despite a claim that its adoption would be a futile act because the measure offends the Constitution. (E.g., Mulkey v. Reitman (1966) 64 Cal.2d 529, 535, 50 Cal.Rptr. 881, 413 P.2d 825; Gayle v. Hamm (1972) 25 Cal.App.3d 250, 256-258, 101 Cal.Rptr. 628.)

But this rule applies only to the contention that an initiative is unconstitutional because of its substance. If it is determined that the electorate does not have the power to adopt the proposal in the first instance or that it fails to comply with the procedures required by law to qualify for the ballot, the measure must be excluded from the ballot.

Thus, for example, election officials have been ordered not to place initiative and referendum proposals on the ballot on the ground that the electorate did not have the power to enact them since they were not legislative in character (e.g....