Legislature v. Reinecke

• Decision Date: 18 January 1972
• Docket Number: THIRTY-TWO,Nos. 7917,7919 and 7923,s. 7917
• Court: California Supreme Court
• Parties: , 492 P.2d 385 LEGISLATURE of the State of California et al., Petitioners, v. Ed REINECKE, as Lieutenant Governor, etc., et al., Respondents. Edmund G. BROWN, Jr., as Secretary of State, etc., Petitioner, v. Ronald REAGAN, as Governor, etc., Respondent.MEMBERS OF the UNITED STATES HOUSE OF REPRESENTATIVES, Petitioners, v. Ronald REAGAN, as Governor, etc., et al., Respondents. Sac. In Bank

Page 481

99 Cal.Rptr. 481

6 Cal.3d 595, 492 P.2d 385

LEGISLATURE of the State of California et al., Petitioners, v. Ed REINECKE, as Lieutenant Governor, etc., et al., Respondents.

Edmund G. BROWN, Jr., as Secretary of State, etc., Petitioner, v. Ronald REAGAN, as Governor, etc., Respondent.

THIRTY-TWO MEMBERS OF the UNITED STATES HOUSE OF REPRESENTATIVES, Petitioners, v. Ronald REAGAN, as Governor, etc., et al., Respondents.

Sac. Nos. 7917, 7919 and 7923.

Supreme Court of California,

In Bank.

Jan. 18, 1972.

As Modified Feb. 15, 1972.

George H. Murphy, Legislative Counsel, Clinton J. deWitt, Deputy Legislative Counsel, Sacramento, and Herman F. Selvin, Beverly Hills, for Legislature of State of Cal. and others.

Edmund G. Brown, Jr., Daniel Hays Lowenstein, Sacramento, and Philip Neumark, for Edmund G. Brown, Jr., Sec. of State.

Wyman, Bautzer, Rothman & Kuchel, Thomas H. Kuchel and Frank Rothman, Beverly Hills, for Thirty-two Members of U.S. House of Representatives and others.

Evelle J. Younger, Atty. Gen., Robert Burton, Asst. Atty. Gen., and J. M. Sanderson, Deputy Atty. Gen., for Ronald Reagan, as Governor and certain respondents in Nos. 7917 and 7923.

John V. Diepenbrock, Sacramento, for respondent Lieutenant Governor.

Robert S. Daggett, Richards, Watson & Dreyfuss, Glenn R. Watson, Los Angeles, Robert N. Joehnck, Halley & Cornell, James W. Halley, San Francisco, David J. Levy, City Atty. (Pinole and Concord), James P. O'Drain, City Atty. (Richmond), Samuel V. McGrath, Deputy City Atty., LaFollette, Johnson, Horgan & Robinson, James Dexter Clark, Los Angeles, Chinello, Chinello & Maddy, Kenneth L. Maddy, Fresno, Frank J. Pegliaro, Jr., Seth M. Hufstedler, Los Angeles, John L. Burton, Sacramento, Putnam Livermore, San Francisco, Tinning & DeLap, Austin R. Gibbons, Richmond, David E. Schricker, City Atty. (Redwood City), John J. Gottes, City Atty. (South Gate), John Philip Coghlan, John D. Maharg, County Counsel (Los Angeles), Edward H. Gaylord, Asst. County Counsel, Ray T. Sullivan, Jr., County Counsel (Riverside), Richard W. Rickenson, County Counsel (San Joaquin), Monroe N. Langdon, City Atty. (Stockton), Paul F. Mordy, Asst. City Atty., Theodore R. Bresler, Deputy City Atty., Keith C. Sorenson, Dist. Atty. (San Mateo), and James M. Parmelee, Deputy City Atty., for other interested parties.

WRIGHT, Chief Justice.

In these mandate proceedings we are called upon to resolve the impasse created by the failure to date of the Legislature to pass legislative and congressional reapportionment bills acceptable to the Governor in time for the upcoming 1972 primary and general elections. For the reasons hereafter stated we have concluded that there is now no practical alternative available to us but to order into effect readily available temporary apportionment plans for the 1972 elections. As we have repeatedly emphasized in the past, however, reapportionment is primarily a matter for the legislative branch of the government to resolve. (Silver v. Brown (1965) 63 Cal.2d 270, 280, 46 Cal.Rptr. 308, 405 P.2d 132; Silver v. Brown (1965) 63 Cal.2d 316, 318, 46 Cal.Rptr. 531, 405 P.2d 571; Silver v. Reagan (1967) 67 Cal.2d 452, 458, 62 Cal.Rptr. 424, 432 P.2d 26.) Accordingly, we urge the Legislature and the Gover The parties to he litigation involving legislative reapportionment are the Governor; the Legislature; various members of the Legislature representing the views of various groups of legislators; the Lieutenant Governor, the Attorney General, the Controller, the Secretary of State, and the Superintendent of Public Instruction acting as members of the Reapportionment Commission; and the Secretary of State acting as chief election official of the state. The parties to the litigation involving congressional reapportionment are 32 of the members of the United States House of Representatives from California, the Governor, the Secretary of State, other elected officials of the state, and all of the members of the Legislature.

[492 P.2d 387] nor, in the exercise of their shared legislative power to enact laws (see Lukens v. Nye (1909) 156 Cal. 498, 501, 505, 105 P. 593), to enact reapportionment measures in time for the 1972 elections, and thus to render unnecessary the use of our temporary plans. In this respect we note that the date of the June primary, at least insofar as it relates to the nominations of candidates for seats in the Legislature and the Congress, could be postponed by statute to allow substantial additional time for the orderly conduct of such primary nominating election. Since, however, the legislative impasse may continue indefinitely, and since 'it is our duty to insure the electorate equal protection of the laws' (Silver v. Brown, supra, 63 Cal.2d 270, 282, 46 Cal.Rptr. 308, 316, 405 P.2d 132, 140), we deem it essential to state that we shall proceed well in advance of the 1974 elections to draft our own reapportionment plans based on the 1970 census unless, by the end of its current regular session, the Legislature has enacted valid statutes reapportioning the legislative and congressional districts.

We turn to the conflicting contentions of the parties.

Since the Legislature failed to enact statutes reapportioning the assembly and senatorial districts at its first regular session following the 1970 federal census, at least a majority of the members of the Reapportionment Commission now assert the authority to reapportion those districts and have commenced working toward that end. In The Legislature v. Reinecke, Sac. 7917, petitioners challenge the authority of the commission to act and seek a peremptory writ of mandate directing it not to reapportion either house of the Legislature.

Section 6 of article IV of the California Constitution provides in part: ¹ 'should We noted our prior holding in Yorty v. Anderson (1963) 60 Cal.2d 312, 316--317, 33 Cal.Rptr. 97, 384 P.2d 417, that the failure of the Legislature to enact a valid reapportionment at its first regular session following a federal decennial census did not deprive it of power thereafter to enact a valid reapportionment within the ensuing decade. (63 Cal.2d at p. 274, 46 Cal.Rptr. 308, 405 P.2d 132.) We pointed out that such power was part of the legislative power vested in the Legislature by section 1 of article IV of the California Constitution, subject to the powers reserved to the people of initiative and referendum. (63 Cal.2d at p. 280, 46 Cal.Rptr. 308, 405 P.2d 132.) We then held that the Reapportionment Commission had no power to act on the ground that the provision creating the commission was inseverable from the invalid parts of section 6. We stated: 'There is also no merit in the contention that since the Legislature has had the opportunity but has failed to reapportion the Senate, the Reapportionment Commission should now do so. Even if we could reasonably disregard the express condition precedent to the commission's power, namely, that the Legislature must have failed to reapportion itself after the 1960 census, we could not hold the provision creating the commission severable from the invalid parts of section 6. In amending section 6 in 1926 the people created the commission to enforce a specific apportionment plan. We do not believe they would have delegated such broad legislative power to the commission as is now appropriate for the Legislature to exercise, had they known that the standards set forth in section 6 could not be followed consistently with the United States Constitution. (Citations.)' (63 Cal.2d at p. 281, 46 Cal.Rptr. at p. 316, 405 P.2d at p. 140.)

[492 P.2d 388] the Legislature at the first regular session . . . following any decennial federal census fail to reapportion the assembly and senatorial districts, a Reapportionment Commission, which is hereby created, . . . shall forthwith apportion such districts in accordance with the provisions of this section. . . .' This provision of section 6 was adopted in 1926 at the same time the people amended section 6 to provide for a federal plan of legislative apportionment whereby the Senate was apportioned largely on a geographical basis and the Assembly was apportioned largely but not entirely on a population basis. After the United States Supreme Court held that the federal plan provisions of section 6 applicable to the Senate violated the one man, one vote requirement of the Equal Protection Clause (Jordan v. Silver (1965) 381 U.S. 415, 85 S.Ct. 1572, 14 L.Ed.2d 689, affirming Silver v. Jordan (D.C.1964) 241 F.Supp. 576), this court was confronted in Silver v. Brown, supra, 63 Cal.2d 270, 46 Cal.Rptr. 308, 405 P.2d 132, with implementing the United States Supreme Court decision.

We adhere to that holding, not only because of the principle of stare decisis, but It is contended that insofar as the California Senate and Assembly are concerned, the reapportionment bills passed by the Legislature at its 1971 First Extraordinary Session are effective despite the Governor's vetoes. It is urged that the doctrine of separation of powers compels the conclusion that the Legislature must have unfettered power to reapportion its own houses within constitutional limits and that therefore the Governor is without power to override the will of a simple majority by exercising his vetoes. We find no basis whatsoever in the California Constitution, however, for concluding that measures reapportioning the houses of the Legislature are not laws that must be enacted pursuant to the Constitution. (See Smiley v. Holm (1932) 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795.) Subdivision (b) of section 8 of article IV provides: 'The Legislature may make no law except by statute and may enact no statute except by bill.' Subdivision (a) of section 10 of article IV provides: 'Each bill passed by the Legislature shall be presented to the Governor. It becomes a statute if he signs it. He may veto it by returning it with his objections to the house of origin, which shall...