Californians for an Open Primary v. McPherson

• Decision Date: 25 May 2006
• Docket Number: No. S126780.,S126780.
• Citation: 38 Cal.4th 735,43 Cal.Rptr.3d 315,134 P.3d 299
• Court: California Supreme Court
• Parties: CALIFORNIANS FOR AN OPEN PRIMARY et al., Petitioners, v. Bruce McPHERSON, as Secretary of State, etc., Respondent; California Legislature, Real Party in Interest.

43 Cal.Rptr.3d 315

38 Cal.4th 735

134 P.3d 299

CALIFORNIANS FOR AN OPEN PRIMARY et al., Petitioners, v. Bruce McPHERSON, as Secretary of State, etc., Respondent California Legislature, Real Party in Interest.

No. S126780.

Supreme Court of California.

May 25, 2006.

Strumwasser & Woocher, Fredric D. Woocher, Michael J. Strumwasser, Santa Monica, and Aimee E. Dudovitz, for Petitioners.

Bill Lockyer, Attorney General, Louis R. Mauro, Assistant Attorney General, Catherine M. Van Aken and Geoffrey L. Graybill, Deputy Attorneys General, for Respondent.

Diane F. Boyer-Vine, Jeffrey A. DeLand, Marian M. Johnston, Sacramento, Dulcinea A. Grantham; Remcho, Johansen & Purcell, Kathleen J. Purcell, Robin B. Johansen, San Leandro, Thomas A. Willis, Margaret R. Prinzing and Karen Getman, for Real Party in Interest.

GEORGE, C.J.

We granted review to address an issue of first impression: the proper interpretation of California Constitution, article XVIII, section 1 (article XVIII, section 1), which requires in its second sentence that when the Legislature proposes an amendment of the state Constitution, "[e]ach amendment shall be so prepared and submitted that it can be voted on separately."

We conclude, as did the Court of Appeal below, and consistently with our provision's language and history and more than a century of out-of-state decisions construing the essentially identical provisions of nearly 30 other state constitutions, that the separate-vote provision is a limitation upon legislative power to submit constitutional amendments to the voters.

We disagree, however, with the Court of Appeal below, concerning the applicable test for determining whether, in a given case, the Legislature's submission of constitutional changes in a single measure violates article XVIII, section 1. In addressing that question, the Court of Appeal followed a minority rule that recently was reinvigorated by Armatta v. Kitzhaber (1998) 327 Or. 250, 959 P.2d 49 (Armatta) — a decision in which the Oregon Supreme Court construed its state's separate-vote provision as establishing a test different from and stricter than the traditional test employed by courts under a related constitutional provision also found in most state constitutions — the "single subject rule" (see Cal. Const., art. II, § 8, subd. (d) & art. IV, § 9). Unlike the Oregon court and a few other courts that have followed Armatta under their respective state constitutions, we find no basis in the history of the California Constitution for such a conclusion, and hence we shall follow the approach that is, and has been, the majority rule for nearly 130 years: the separate-vote provision should be construed consistently with its kindred provision, the single subject provision.

So construing the separate-vote provision of article XVIII, section 1, we conclude that the Legislature's proposed submission, in a single constitutional amendment, of two changes to the state Constitution that are not germane to a common theme, purpose, or subject, violated the constitutional separate-vote requirement. Accordingly, we affirm this aspect of the judgment rendered by the Court of Appeal, although for reasons different from those relied upon by that court.

We also address the question of remedy. The Court of Appeal, by a two-to-one vote, ordered the Secretary of State to separate the two proposed constitutional changes at issue in this matter into two measures for submission to the voters. When ruling upon this matter in the weeks preceding the November 2004 general election (and only days before the deadline for the printing of ballot materials), we declined to disturb the Court of Appeal's order, and the voters of this state subsequently adopted each separated constitutional amendment. Although we conclude that the Court of Appeal erred by ordering bifurcation, we find it unnecessary and inappropriate to invalidate either of these separately submitted and approved constitutional amendments.

I

Proposition 62, an initiative that qualified for the November 2, 2004, statewide General Election ballot, proposed a constitutional amendment to permit so-called open primaries.¹ In an apparent response to that measure, both houses of the Legislature passed by a two-thirds vote Senate Constitutional Amendment No. 18 of the 2003-2004 Regular Session (Sen. Const. Amend. No. 18, Stats. 2004 (2003-2004 Reg. Sess.) res. ch. 103, hereafter Resolution 103) for submission to the voters on the November 2004 ballot. As adopted, Resolution 103 proposed, in a single measure, two changes to the state Constitution.

The first change concerned primary elections and evidently was designed to conflict with and supersede the competing initiative measure, Proposition 62. This part of Resolution 103 proposed to amend article II of the California Constitution by adding section 5, subdivision (b), which provided that a political party's top votegetter in a primary election must be permitted to run in the ensuing general election.² The second change set forth in Resolution 103 concerned state property and proposed to amend article III of the California Constitution by adding a new section 9 to provide a means for the state to pay bond obligations.³

After Resolution 103 was designated Proposition 60 by the Secretary of State, petitioners Californians for an Open Primary and Nick Tobey (Californians for an Open Primary) — proponents of Proposition 62 — filed a petition for a writ of prohibition in the Court of Appeal, seeking to bar the Secretary of State from placing Proposition 60 on the general election ballot on the ground that its submission as a single ballot proposition would violate the separate-vote provision of article XVIII, section 1. The Legislature of the State of California filed opposition. The Court of Appeal agreed with Californians for an Open Primary that Resolution 103, submitted in a single measure as Proposition 60, violated the Constitution's separate-vote provision. In reaching that conclusion, the appellate court relied upon the Oregon Supreme Court's construction of that state's own separate-vote provision and unanimously endorsed a strict test focusing upon "`whether, if adopted, the proposal would make two or more changes to the constitution that are substantive and are not closely related.'" (Quoting Armatta, supra, 327 Or. 250, 959 P.2d 49, 64, italics added.) The Court of Appeal also unanimously found that the proposed submission violated this test but, by a two-to-one vote, rejected the assertion that Proposition 60 should be stricken from the ballot, instead issuing a peremptory writ of mandate directing the Secretary of State to prepare the ballot "so that section 5 of article II and section 9 of article III, as proposed in [Resolution 103], will be submitted to the voters as separate measures to be voted on separately."

Both Californians for an Open Primary and the Legislature petitioned this court for review. The petition of Californians for an Open Primary took issue with substantial aspects of the Court of Appeal's analysis, but agreed with the lower court's conclusion that submission of Proposition 60 as a single measure would violate the separate-vote provision. Petitioners urged, however, that the Court of Appeal majority erred in deciding, as a remedy for the separate-vote violation, that the measure should be bifurcated and presented on the ballot as two separate measures; the proper remedy, petitioners asserted, instead was an order barring the measure from appearing on the ballot, and hence petitioners requested a stay of the Court of Appeal's bifurcation order. The Legislature's petition for review, by contrast, disagreed with both (1) the Court of Appeal's separate-vote-provision analysis and conclusion, and (2) the Court of Appeal majority's bifurcation remedy, and further argued that the request for a stay should be denied "and review of the remedy should occur only in conjunction with review on the merits." The Legislature argued for an "approach that truly aids this Court's jurisdiction," namely, that "this Court's review proceed in an orderly manner that does not prejudge the merits, that fairly balances the interests of the parties and that protects the people's rights in the approaching election. To that end, given the exigencies of the case, the Legislature acquiesces in the remedy ordered by the Court of Appeal as it applies to the November election and asks that this Court leave that order in place while it reviews the case."

We unanimously granted review to address the merits of both substantive issues presented — that is, the proper interpretation of article XVIII, section 1, and the Court of Appeal's bifurcation remedy. In light of the impending election and ballot preparation deadlines, we also ordered the Secretary of State to place Resolution 103 on the November 2004 ballot "in the manner directed by the Court of Appeal" — that is, as Propositions 60 (the primary-election provision) and 60A (the state property/bonds repayment provision), and we denied the request for a stay.⁴

At the November 2004 election, the voters rejected Proposition 62 and enacted both Propositions 60 and 60A.⁵

As noted above, although Californians for an Open Primary agrees with the Court of Appeal's conclusion that the separate-vote provision of article XIII precluded the Legislature from joining the disparate provisions of Resolution 103 in a single proposed constitutional amendment, it maintains that the Court of Appeal erred in bifurcating the resolution into two separate proposed constitutional amendments and directing that the measure be placed on the ballot as two separate propositions. In the briefing filed in this court after the November 2004 election, Californians for an Open Primary argues that the Court of Appeal's error in this regard requires invalidation of both constitutional amendments despite the voters' approval of each measure at the November 2004 elec...