Gerken v. Fair Political Practices Com.

• Decision Date: 20 December 1993
• Docket Number: No. S025815,S025815
• Citation: 863 P.2d 694,6 Cal.4th 707,25 Cal.Rptr.2d 449
• Court: California Supreme Court
• Parties: , 863 P.2d 694 Walter B. GERKEN et al., Petitioners, v. FAIR POLITICAL PRACTICES COMMISSION et al., Respondents; State of California, Intervener.

Page 449

25 Cal.Rptr.2d 449

6 Cal.4th 707, 863 P.2d 694

Walter B. GERKEN et al., Petitioners, v. FAIR POLITICAL PRACTICES COMMISSION et al., Respondents State of California, Intervener.

No. S025815.

Supreme Court of California In Bank.

Dec. 20, 1993.

Munger, Tolles & Olson, Bradley S. Phillips, Mark H. Epstein, Los Angeles, Strumwasser & Woocher and Fredric D. Woocher, Santa Monica, for petitioners.

Glenn L. Rigby, Peter S. Pierson, John R. Akin, Kathryn Allen, Ben Davidian, Scott Hallabrin and Deanne Stone, Sacramento, for respondents.

Bell & Hiltachk, Charles H. Bell, Jr., Thomas W. Hiltachk, Sacramento, Carlsmith, Ball, Wichman, Murray, Case, Mukai & Ichiki, Allan E. Tebbetts, Daniel J. Payne, Long Beach, Kopp & Di Franco, Quentin L. Kopp, San Francisco, Ross Johnson, Olson, Connelly, Hagel, Fong & Leidigh, Lance H. Olson and George Waters, Sacramento, as amici curiae on behalf of respondents.

Daniel E. Lungren, Atty. Gen., Cathy Christian, Manuel M. Medeiros and Daniel G. Stone, Deputy Atty. Gen., for intervener.

Remcho, Johansen & Purcell, Joseph Remcho, Robin B. Johansen and Julie M. Randolph, San Francisco, as amici curiae on behalf of intervener.

LUCAS, Chief Justice.

Propositions 73 (Gov.Code, tit. 9, ch. 5, art. 1 et seq.) ¹ and 68 (ibid.), both designed to implement campaign contribution reform, were each approved by the voters at the June 1988 Primary Election. The former garnered more affirmative votes than the latter. In Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 274 Cal.Rptr. 787, 799 P.2d 1220 (hereafter Taxpayers ), we held that under California Constitution, article II, section 10, subdivision (b), "when two or more measures are competing initiatives,.... only the provisions of the measure receiving the highest number of affirmative votes [can] be enforced." (51 Cal.3d at p. 747, 274 Cal.Rptr. 787, 799 P.2d 1220.) Accordingly, we declined to "merge" the two measures, and instead held that Proposition 73 was effective and that Proposition 68 was inoperative. (Id., at pp. 770-771, 274 Cal.Rptr. 787, 799 P.2d 1220.) At the conclusion of our opinion, we observed in a footnote:

"The United States District Court has recently restrained enforcement of the Proposition 73 restrictions on campaign contributions and transfers thereof. (Service Employees v. Fair Political Practices (E.D.Cal.1990) 747 F.Supp. 580 [Service Employees I].) That decision is not final, however, and does not invalidate the remainder of Proposition 73. [p] For that reason, we need not decide in this proceeding whether an initiative measure that has no effect at the time it is adopted because it is superseded by another measure adopted by a larger vote at the same election becomes effective if the latter is subsequently invalidated. (Cf. Corning Hospital District v. Superior Court (1962) 57 Cal.2d 488, 494 [20 Cal.Rptr. 621, 370 P.2d 325].)" (Taxpayers, supra, 51 Cal.3d at p. 771, fn. 13, 274 Cal.Rptr. 787, 799 P.2d 1220, italics added.)

In this original mandamus proceeding (Cal. Const., art. VI, § 10; Cal.Rules of Court, rule 56(a)), petitioners ² raise the issue reserved in Taxpayers. Noting that the Ninth Circuit Court of Appeals has affirmed the district court decision cited above (see Service Emp. Intern. v. Fair Political Prac. Com'n (1992) 955 F.2d 1312 [hereafter Service Employees II ] ), and that the high court has denied certiorari review of that judgment (--- U.S. ----, 112 S.Ct. 3056, 120 L.Ed.2d 922), petitioners assert Proposition 73 has been invalidated, and Proposition 68 should be revived by operation of law.

We issued an alternative writ. ³ Thereafter respondents ⁴ advised us that they would take no position on the merits of the suit. We subsequently permitted the State of California, represented by the Attorney General, to intervene, and we allowed participation as amicus curiae in opposition to petitioners by legislators, labor unions, and a lobbying group, ⁵ as well as the state Republican and Democratic parties.

For reasons explained below, we conclude Proposition 73 remains effective in substantial part; accordingly, it has not been "invalidated" as we used that term in Taxpayers, supra, 51 Cal.3d at page 771, footnote 13, 274 Cal.Rptr. 787, 799 P.2d 1220. It follows that, as we held in Taxpayers, Proposition 68 remains inoperative. Hence, we will discharge the order to show cause, and deny the writ.

I. Background

Taxpayers, supra, 51 Cal.3d at pp. 748-755, 274 Cal.Rptr. 787, 799 P.2d 1220, describes in detail the competing schemes set out in Propositions 73 and 68. Briefly, Proposition 73 proposed to impose limits on campaign contributions for all elective offices; prohibit the use of public funds for campaign expenditures; and prohibit elected officials from spending public funds on newsletters and mass mailings. (See Taxpayers, supra, 51 Cal.3d at pp. 749-751, 274 Cal.Rptr. 787, 799 P.2d 1220.) Proposition 68, by contrast, proposed to impose contribution limitations on state legislative candidates, and further proposed to impose expenditure limitations on those qualified candidates who elected to receive partially state-funded matching funds. (See Taxpayers, supra, 51 Cal.3d at pp. 751-754, 274 Cal.Rptr. 787, 799 P.2d 1220.) As noted above, we held in Taxpayers that because the two schemes were presented to the voters as alternative, competing measures, only Proposition 73, which received the higher number of affirmative votes, was effective.

Shortly before we filed our opinion in Taxpayers, the federal district court considered challenges to, inter alia, three key sections of the "contribution limitations" provisions of Proposition 73. (Service Employees I, supra, 747 F.Supp. 580.) The plaintiffs in that litigation asserted that because the contribution limitations of Proposition 73 (§§ 85301-85303) are measured on a fiscal year instead of an "election cycle" basis, they unconstitutionally discriminate in favor of incumbents and their supporters and against challengers and their supporters. The various other parts of Proposition 73 (described below) were not challenged.

The district court found the fiscal year provisions of Proposition 73 unconstitutional under the First Amendment. (Service Employees I, supra, 747 F.Supp. at p. 590.) It next addressed the state law issue of whether those provisions might be severed from the contribution limitations themselves, and concluded that the statutes could not be saved. (Ibid.) Accordingly, it struck the contribution limitations and permanently enjoined their enforcement. (Id., at p. 593.) Thereafter, as noted above, the Ninth Circuit Court of Appeals affirmed the judgment of the district court, and the high court denied certiorari review. On the federal constitutional issue, the Ninth Circuit agreed with the district court, and found the statutes as enacted violate the First Amendment. (Service Employees II, supra, 955 F.2d at p. 1320.) On the state law issue of whether the statutes might be saved by a construction that would eliminate the constitutional problems consistently with the voters' intent, the Ninth Circuit also agreed with the district court that sections 85301-85303 cannot be saved or reformed. (955 F.2d at p. 1321.) ⁶

The primary provisions of Proposition 73 that are not subject to the federal injunction are these:

Rules regarding solicitation and use of funds. Section 85200 requires that candidates file a written statement of intent to run for office before soliciting contributions, and section 85201 requires that candidates deposit campaign funds into a single "campaign contribution account," and that all campaign expenditures be made from that account. In addition, section 85202, which was repealed (Stats.1990, ch. 84, § 3) and reenacted, as amended, as section 89510, provides, inter alia, that contributions to a campaign are held in trust for use in election to the office stated in section 85200.

Prohibition on public funding. Section 85300 provides, "No public officer shall expend and no candidate shall accept any public moneys for the purpose of seeking elective office."

Rules for special elections. Section 85305 establishes contribution limits in special elections, and section 85304 (insofar as it applies to special elections) bans transfer of funds between candidates.

Regulation of honoraria. Former section 85400, which regulated gifts and honoraria, was repealed (Stats.1990, ch. 84, § 3.5) and reenacted, as amended, as section 89502, which provides: "(a) No elected state officer may accept an honorarium."

Prohibition on publicly funded newsletters and mass mailings. Section 89001 provides, "No newsletter or other mass mailing shall be sent at public expense."

II. Analysis

Petitioners assert that because Proposition 73's contribution limitations (insofar as they apply to primary and general elections) have been invalidated and their enforcement enjoined, the remaining parts of Proposition 73, which are not subject to the injunction, are likewise unenforceable because they are nonseverable from the invalidated portions of the measure. ⁷ In other words, petitioners claim Proposition 73 has been invalidated in its entirety as a result of the federal injunction.

Although the various amici curiae on behalf of respondents contest petitioners' severability argument, intervener State of California declines to do so, and instead asserts we should defer any severability analysis until we are first satisfied that the provisions of Proposition 73 enjoined by the federal courts are "in fact" unconstitutional and void. Intervener contends we should not assume, merely because the federal courts have enjoined enforcement of Proposition 73's campaign contribution limitations, that those provisions are in fact unconstitutional. To this end, intervener has filed both a demurrer (Code Civ.Proc., § 1089; Cal.Rules of Court, rule 56(e)) and an answer to the petition, in...