Schmitz v. Younger

Decision Date26 April 1978
Parties, 577 P.2d 652 John G. SCHMITZ, Petitioner, v. Evelle J. YOUNGER, Attorney General of the State of California, Respondent. L.A. 30844.
CourtCalifornia Supreme Court

Kenneth J. Kukuda, Tustin, for petitioner.

Evelle J. Younger, Atty. Gen., Iver E. Skjeic and James M. Sanderson, Asst. Attys. Gen., and Susan Orton Baisden, Deputy Atty. Gen., for respondent.

CLARK, Justice.

Petitioner seeks writ of mandate to compel the Attorney General to title and prepare summary of a proposed initiative measure.

Petitioner submitted a proposed initiative measure to the Attorney General for title and summary preparatory to obtaining signatures to qualify the measure for the ballot. (See Elec. Code, §§ 3502, 3503.) The measure would (a) make it unlawful for any teacher to strike; (b) prohibit campaign contributions by teachers' organizations; and (c) prevent tax revenues from being used to provide transportation for purpose of racially balancing public schools.

The Attorney General refused to issue the title on the ground that the proposed measure concerns more than one subject thereby violating article II, section 8, subdivision (d), of the California Constitution. The subdivision provides: "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect."

The right of the initiative is "precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter." (McFadden v. Jordan (1948) 32 Cal.2d 330, 332, 196 P.2d 787, 788.) "To preserve the full spirit of the initiative the submission of issues to the voters should not become bogged down by lengthy litigation in the courts." (Perry v. Jordan (1949) 34 Cal.2d 87, 91, 207 P.2d 47, 49.)

In furtherance of the people's power we have narrowly circumscribed the rights of ministerial officials to impede or delay the initiative process. Speaking of an acting registrar in Farley v. Healey, supra, 67 Cal.2d 325, 327, 62 Cal.Rptr. 26, 28, 431 P.2d 650, 652, this court stated: "It is not his function to determine whether a proposed initiative will be valid if enacted or whether a proposed declaration of policy is one to which the initiative may apply. These questions may involve difficult legal issues that only a court can determine. The right to propose initiative measures cannot properly be impeded by a decision of a ministerial office, even if supported by the advice of the city attorney, that the subject is not appropriate for submission to the voters." (Italics added.)

The duty of the Attorney General to prepare title and summary for a proposed initiative measure is a ministerial one and mandate will lie to compel him to act when the proposal is in proper form and complies with statutory and constitutional procedural requirements. (Warner v. Kenny (1946) 27 Cal.2d 627, 630-631, 165 P.2d 889.)

The single subject requirement of article II, section 8, subdivision (d), involves difficult legal questions that only a court may resolve. (Cf. Perry v. Jordan, 34 Cal.2d 87, 92-93, 207 P.2d 47.) We are satisfied that a claim of violation of subdivision (d) is not merely a formal one, but is based on the effects of the contents of the proposed measure. Absent judicial authorization, the Attorney General may not urge violation of the single subject requirement to justify refusal to title and prepare summary of a proposed measure.

This does not mean that the Attorney General may not challenge the validity of the proposed measure by timely and appropriate legal action. We hold only that without prior judicial authorization he may not delay or impede the initiative process while claims of the measure's invalidity are determined. Petitioner is entitled to have his proposal titled and summarized so that he may commence seeking signatures to qualify it for the ballot.

We express no view as to the merits of the claim that the proposed measure concerns more than one subject.

Let a peremptory writ of mandate issue as prayed.

BIRD, C. J., and MOSK, RICHARDSON and NEWMAN, JJ., concur.

MANUEL, Justice.

I must respectfully dissent. The views expressed in the majority opinion are at odds with the recognized powers of the Attorney General derived from constitutional and common law sources and would compel the Attorney General to perform unnecessary acts with respect to an initiative measure which does not meet the requirement for placement on the ballot.

We have recognized the power of the Attorney General to protect the public interest. Recently we reiterated that power in D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 14, 112 Cal.Rptr. 786, 796, 520 P.2d 10, 20, when we said: ". . . The Attorney General . . . is the chief law officer of the state (Cal.Const., art. V, § 13). As such he possesses not only extensive statutory powers but also broad powers derived from the common law relative to the protection of the public interest. (See Pierce v. Superior Court (1934) 1 Cal.2d 759, 761-762, 37 P.2d 460, (96 A.L.R. 1020), and cases there cited, especially People v. Stratton (1864) 25 Cal. 242, 246-247.) '(H)e represents the interest of the people in a matter of public concern.' (Savings Bank v. Superior Court (1894) 103 Cal. 27, 32, 36 P. 1015, 1017.) Thus, 'in the absence of any legislative restriction, (he) has the power to file any civil action or proceeding directly involving the rights and interests of the state, the preservation of order, and the protection of public rights and interest.' (Pierce v. Superior Court, supra, 1 Cal.2d at pp. 761-762, 37 P.2d at p. 461.) Conversely, he has the duty to defend all cases in which the state or one of its officers is a party. (Gov.Code, § 12512.) In the course of discharging this duty he is often called upon to make legal determinations both in his capacity as a representative of the public interest and as statutory counsel for the state or one of its agencies or officers. . . ."

The majority turns away from this view by its holding today. The nature of the office of the Attorney General has been described as follows: "As guardian of royal prerogative, the Attorney General of England possessed a broad range of powers . . . . Unlike after the Colonial Period when state governments were organized and recognized in this country, there was no monarch in whom the governmental prerogatives were vested. Since the essential power of government resided and emanated from the people, the prerogatives had to be exercised on their behalf. Just as the Attorney General safeguarded royal prerogatives at common law, similarly, the official authority, an obligation to protect public rights and enforce public duties on behalf of the general public became vested by the states in the Attorney General, and it is this obligation inherited from the common law to represent the public interest which has shaped and colored the role which the Attorney General fulfills today." (Report on the Office of the Attorney General, p. 33, National Association of Attorneys General, February 1971.)

If the measure sought to be titled contains more than one subject, as in the instant case, then the Attorney General not only has the right not to proceed, but indeed, he has the duty not to proceed. Any other course would not only be contrary to his constitutional duties and powers qua Attorney General, but contrary to his oath of office (Cal.Const., art. X, § 3.) The position the Attorney General must take here is directly connected with the initiative process, a process constitutionally prescribed and which provides that any "initiative measure embracing more than one subject may not be submitted to the electors or have any effect." (Cal.Const., art. II, § 8, subd. (d).)

If it be assumed that the measure before this Court does not meet the test of article II, section 8, subdivision (d), then not only should it not be submitted to the voters, but it shall not "have any effect." This provision does not say that the initiative shall have no effect only after judicial determination, but rather the Constitution renders such measure void, and not merely voidable. Of course, the Attorney General, in concluding that the section has no effect, proceeds at his risk that others, especially the judiciary, will disagree with him. However, such risk taking is inherent in every legal prognostication and marks the very process by which law is practiced in this country, whether by lawyer, trial court or intermediate courts of appeal. That such risks exist, perhaps, may encourage the Attorney General to seek refuge in the safe course of litigation as suggested by the majority, but such risk cannot make effective that which is ineffective. Defense of the Constitution has never been the preoccupation of the timid. This court cannot properly condemn the action of the Attorney General where as here, it refuses to determine the correctness of his decision.

The characterization of the Office of the Attorney General by such terms as "ministerial officer" is not a proper substitute for analysis or understanding of that office, nor is that characterization correct. It is true that Warner v. Kenny (1946) 27 Cal.2d 627, 630-631, 165 P.2d 889, with respect to the case before it used this unfortunate expression, but in that case, the Attorney General refused to issue a summary and title on the ground that the measure was substantially the same as a measure which had been duly titled and summarized earlier but which failed to qualify for the ballot within the time allowed by law. No basis could be found in law for the Attorney General's refusal. Accordingly, this court stated: "no showing has been made to justify his refusal to prepare a title and summary for the proposed measure, and since it is in proper form and was submitted to him in accordance with the constitutional and statutory requirements...

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