Legislature v. Deukmejian

• Decision Date: 15 September 1983
• Docket Number: S,S.F. 24589
• Citation: 669 P.2d 17,194 Cal.Rptr. 781,34 Cal.3d 658
• Parties: , 669 P.2d 17 LEGISLATURE OF the STATE OF CALIFORNIA et al., Petitioners, v. George DEUKMEJIAN, as Governor, etc., et al., Respondents; Don SEBASTIANI et al., Real Parties in Interest. Glenn M. ANDERSON et al., Petitioners, v. George DEUKMEJIAN, as Governor, etc., et al., Respondents; Don SEBASTIANI et al., Real Parties in Interest. F. 24596.
• Court: California Supreme Court

Page 781

194 Cal.Rptr. 781

34 Cal.3d 658, 669 P.2d 17

LEGISLATURE OF the STATE OF CALIFORNIA et al., Petitioners, v. George DEUKMEJIAN, as Governor, etc., et al., Respondents;

Don SEBASTIANI et al., Real Parties in Interest.

Glenn M. ANDERSON et al., Petitioners, v. George DEUKMEJIAN, as Governor, etc., et al., Respondents;

Don SEBASTIANI et al., Real Parties in Interest.

S.F. 24589, S.F. 24596.

Supreme Court of California,

In Bank.

Sept. 15, 1983.

[34 Cal.3d 662] [669 P.2d 18] Joseph Remcho, Robin B. Johansen, Kathleen J. Purcell, Barbara A. Brenner, Remcho, Johansen & Purcell, Charles C. Marson, San Francisco, Irell & Manella, Richard H. Borow, Jonathan H. Steinberg, Donna R. Hecht, Los Angeles, Daniel Hays Lowenstein, Sacramento, Steven Shiffrin, Los Angeles, and Bruce Wessel, Yale Law School, J.D.1984, for petitioners.

J. Albert Woll, Laurence Gold, Washington, D.C., Marsha S. Berzon, Fred H. Altshuler, Stephen P. Berzon, Michael Rubin, Altshuler & Berzon, Charles P. Scully, Donald C. Carroll, Charles P. Scully II, San Francisco, John B. Clausen, County Counsel, Arthur W. Walenta, Asst. County Counsel, Martinez, Donald Clark, County Counsel, Robert Menifee, Deputy County Counsel, San Jose, Joaquin G. Avila, Morris J. Baller, John E. Huerta, San Francisco, Douglas E. Mirell, Susan Lerner, Los Angeles, Barbara S. Bryant, Berkeley, Farnsworth, Saperstein & Brand, Oakland, Burton S. Levinson, Beverly Hills, Nathaniel S. Colley, Sacramento, Ephraim Margolin and Sandra Coliver, San Francisco, as amici curiae on behalf of petitioners.

John K. Van de Kamp, Atty. Gen., Richard D. Martland, Chief Asst. Atty. Gen., N. Eugene Hill and Paul H. Dobson, Deputy Attys. Gen., and Vance W. Raye, Sacramento, for respondents.

Pillsbury, Madison & Sutro, Walter R. Allan, Vaughn R. Walker, Frederick K. Lowell and Kevin M. Fong, San Francisco, for real parties in interest.

BY [34 Cal.3d 663] THE COURT: ^*

In this case we are called upon to determine the constitutionality of an attempt--novel in the history of this state--to readjust state legislative and congressional district boundaries through the statutory initiative process after the Legislature has already done so. We are asked by the proponents of the initiative to create an exception to the constitutionally mandated and long-established rule that redistricting may occur only once within the 10-year period following a federal census. We conclude, based upon the principle that in the enactment of statutes the constitutional limitations that bind the Legislature apply with equal force to the people's reserved power of initiative, that such an exception cannot be justified. Therefore, the proposed initiative is constitutionally impermissible

and may not be submitted to the voters

[669 P.2d 19] Petitioners in these consolidated proceedings are the Legislature of the State of California; Willie L. Brown, Jr., a taxpayer and Speaker of the California Assembly; David Roberti, a taxpayer and President Pro Tempore of the California Senate; three qualified electors; and twenty-eight California members of the House of Representatives. Respondents are the Governor; the Secretary of State; and the Clerk of the City and County of San Francisco and its Registrar of Voters, the latter two officials being sued individually and as representatives of all county clerks and registrars of voters of the state. ¹ Real parties in interest are Don Sebastiani, Parker Montgomery, and Quentin Kopp, the proponents of the initiative measure which is the subject of this petition. ²

Petitioners seek mandamus to restrain respondents, all of whom have official duties in the conduct and/or certification of elections in California, [34 Cal.3d 664] from expending any public funds or otherwise acting to carry out a special election proclaimed by respondent Governor on July 18, 1983, to be conducted on December 13, 1983, ³ for the purpose of submitting to the voters the initiative ⁴ measure of which the real parties in interest are proponents. The initiative, if adopted, would realign the Assembly, Senate and congressional districts of California and repeal statutes enacted by the Legislature during the 1983-1984 First Extraordinary Session. ⁵

[669 P.2d 20] The principal claim of both the legislative and congressional petitioners is that the initiative measure is invalid because it represents an attempt to redistrict more than once in a decennial period--an attempt which both sets of petitioners say is barred by article XXI of the California Constitution, and which congressional petitioners also oppose on the basis that it would [34 Cal.3d 665] violate article I, section 2, of the United States Constitution, ⁶ and the Permanent Reapportionment Act (2 U.S.C. § 2a). ⁷

Legislative and congressional petitioners join also in challenging the initiative on the ground that the districts it seeks to create violate, in the case of the congressional districts, the "equal representation" standard (Karcher v. Daggett (1983) 462 U.S. 725, 103 S.Ct. 2653, 77 L.Ed.2d 133), and as to both types of districts the equal protection clauses of both the state and federal Constitutions. (U.S. Const., 14th Amend.; art. I, § 7; Reynolds v. Sims (1964) 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Baker v. Carr (1962) 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; Assembly v. Deukmejian (1982) 30 Cal.3d 638, 180 Cal.Rptr. 297, 639 P.2d 939.) The legislative petitioners argue also that the initiative unnecessarily disenfranchises certain voters, thus denying them due process and equal protection of the laws; that it fails to provide for redistricting by the Legislature in 1991 as mandated by article XXI; and that it cannot be understood by the voters because it is not accompanied by maps or other descriptive material adequate to permit them to visualize and comprehend the new districts.

Finally, amici curiae who have filed briefs in support of petitioners assert that article XXI permits adjustment of district boundaries only by the Legislature, and that the initiative violates the proscription contained in article II, section 8, subdivision (d), of the California Constitution against initiative measures "embracing more than one subject."

We issued an alternative writ of mandate to consider the issues thus raised. Mandamus is an appropriate remedy. (Assembly v. Deukmejian, supra, 30 Cal.3d 638, 646, 180 Cal.Rptr. 297, 639 P.2d 939.)

PROPRIETY OF PREELECTION REVIEW

"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. [Citations.]" (Brosnahan v. Eu (1982) 31 Cal.3d 1, 4, 181 Cal.Rptr. 100, 641 P.2d 200.) That principle is a salutary one, and where appropriate we adhere to it. However, where the requisite [34 Cal.3d 666] showing of invalidity has been made, departure from the general rule is compelled.

The general rule favoring postelection review contemplates that no serious consequences will result if consideration of the validity of a measure is delayed until after an election. Under those circumstances, the normal arguments in favor of the "passive virtues" suggest that a court not adjudicate an issue until it is clearly required to do so. If the measure passes, there will be

ample time to rule on its validity. If it fails, judicial action will not be required

[669 P.2d 21] In this case both state and local election officials--while not taking any position on the substantive resolution of the case--have urged the court to decide the matter before the election because of what they consider to be the dire consequences of delay. They point, in part, to the high costs--estimated at $15 million--which both state and local governments will be required to absorb if this special election is allowed to proceed, and suggest that if the initiative is in fact invalid this expenditure will be for naught. And they point--most significantly, in our view--to the very substantial problems for election officials, candidates, and supporters that would exist if our consideration of this matter were deferred beyond December. Indeed, the Secretary of State advises us that implementation of changes in district boundaries so close to the time at which procedures preliminary to the conduct of the June 1984 primary election must be undertaken would make the orderly conduct of that election impossible. ⁸ Similar considerations underlay this court's decision to intervene prior to the election on the challenged reapportionment referenda in Assembly v. Deukmejian, supra, 30 Cal.3d 638, 180 Cal.Rptr. 297, 639 P.2d 939.

Another and most formidable argument advanced by petitioners against the validity of the initiative is that the Legislature has already completed the constitutional duty of establishing district boundaries for this decennial period. This argument, if correct, would constitute an absolute bar to a further redistricting prior to the 1990 decennial census, whether by initiative or legislative action. As Justice Mosk observed in his separate opinion in Brosnahan v. Eu, supra, 31 Cal.3d 1, 6, 181 Cal.Rptr. 100, 641 P.2d 200: "[E]lection 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 [citations], the subject matter was not [34 Cal.3d 667] a municipal affair [citations], or the proposal amounted to a revision of the Constitution rather than an amendment thereto. [Citation.]" Here, as in those cases, the challenge goes to the power of the electorate to adopt the proposal in the first instance. This challenge does not require even a cursory examination of the substance of the initiative itself. The question raised is,...