Perry et al v. Schwarzenegger et al

Filing 456

Response re #413 Order ATTORNEY'S GENERAL'S MEMORANDUM IN RESPONSE TO COURT'S INQUIRY [DOC #413] INTO THE ATTORNEY GENERAL'S ROLE IN THE INITIATIVE PROCESS byEdmund G. Brown, Jr. (Attachments: #1 proof of service)(Pachter, Tamar) (Filed on 1/14/2010)

Perry et al v. Schwarzenegger et al

Doc. 456

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EDMUND G. BROWN JR. Attorney General of California JONATHAN K. RENNER Senior Assistant Attorney General GORDON BURNS Deputy Solicitor General TAMAR PACHTER Deputy Attorney General State Bar No. 146083 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: [phone] Fax: [phone] E-mail: [e-mail] Attorneys for Defendant Attorney General Edmund G. Brown Jr. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M. PERRY, et al.,

3:09-cv-02292-VRW

Plaintiffs, ATTORNEY GENERAL'S MEMORANDUM IN RESPONSE TO CITY AND COUNTY OF SAN COURT'S INQUIRY [DOC #413] INTO FRANCISCO, THE ATTORNEY GENERAL'S ROLE IN THE INITIATIVE PROCESS Plaintiff-Intervenor, Judge: Hon. Vaughn R. Walker, Chief Judge v. Trial Date: January 11, 2010 Action Filed: May 27, 2009 ARNOLD SCHWARZENEGGER, et al., Defendants, DENNIS HOLLINGSWORTH, et al., Defendant-Intervenors.

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Attorney General responds to the Court's Order of January 12, 2010 (Doc. #413) as follows: INTRODUCTION The California Constitution and the California Elections Code establish the duties and authority of the Attorney General in the state's initiative and referendum process. These laws and a long-standing decision of the California Supreme Court make clear that the Attorney General's duties in the pre-election process are ministerial, and that the Attorney General cannot refuse to provide a title and summary for a proposed measure because he judges the proposed measure unconstitutional. Schmitz v. Younger, 21 Cal.3d 90, 92-93 (1978). California law simply does not give the Attorney General the authority unilaterally to prevent a proposed ballot measure from being submitted to the voters. The authority to prevent a duly qualified initiative from reaching the ballot rests exclusively with the state courts. Id. at 93. Of course, the Attorney General may petition the state courts to prevent an initiative from reaching the ballot. Id. This, however, is a discretionary act. And the likelihood of success of a petition to withhold a proposed measure from the voters is limited by California's well-established presumption against the pre-election review of substantive constitutional questions. See Independent Energy Producers Ass'n v. McPherson, 38 Cal.4th 1020, 1029 (2006). As the California Supreme Court has repeatedly stated, "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." Id. (quoting Brosnahan v. Eu, 31 Cal.3d 1, 4 (1982). ANALYSIS As set forth in the California Constitution, "[t]he initiative is the power of the electors to propose statutes and amendment to the Constitution and to adopt or reject them." Cal. Const., art. II, § 8(a). Article II, section 10(d) of the California Constitution provides that the Attorney General shall, consistent with statute, prepare a title and summary of proposed measures:

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Prior to the circulation of an initiative or referendum petition for signatures, a copy shall be submitted to the Attorney General who shall prepare a title and summary of the measure as provided by law. The California Elections Code provides more detail. Before circulating any initiative petition for signatures, a proponent must submit the text of the proposed measure to the Attorney General along with a written request for a title and summary. Cal. Elec. Code § 9001(a). Upon receipt of the text, the Attorney General "shall prepare a circulating title and summary of the chief purposes and points of the proposed measure." Id., § 9004(b). The circulating title and summary prepared by the Attorney General must be printed on each page of the petition to be signed by voters. Id., § 9008(b). The Attorney General "shall, in boldface print, include in the circulating title and summary either the estimate of the amount of any increase or decrease in revenues or costs to the state or local government, or an opinion as to whether or not a substantial net change in state or local finances would result if the proposed initiative is adopted." Cal. Elec. Code § 9005(a). The required estimate "shall be made jointly by the Department of Finance and the Joint Legislative Budget Committee, who shall deliver the estimate to the Attorney General so that he or she may include the estimate in the circulating title and summary prepared by him or her." Id., § 9005(b). In preparation of the fiscal estimate or opinion, the Department of Finance and the Joint Legislative Budget Committee may use any statement of fiscal impact prepared by the Legislative Analyst under Government Code section 12172, subdivision (b). Id., § 9005(d). The circulating title and summary prepared by the Attorney General "shall not exceed 100 words." Cal. Elec. Code § 9004(a). The fiscal estimate or opinion prepared by the Department of Finance and the Joint Legislative Budget Committee, however, is not included in this 100-word limit. Holmes v. Jones, 83 Cal.App.4th 882, 888 (2000). Instead, it is included in the title and summary "in the sense that it should be printed along with the title and summary and be placed before voters deciding whether to sign a circulating petition for a proposed ballot initiative." Id. at 889.
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When the Secretary of State determines that a measure will appear on the ballot, the Attorney General prepares a ballot title and summary and ballot label. Cal. Elec. Code § 9050. "In providing the ballot title and summary, the Attorney General shall give a true and impartial statement of the purpose of the measure in such language that the ballot title and summary shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure." Id. § 9051(c). This standard of neutrality for the content of the ballot title and summary applies equally to the preparation of the circulating title and summary. Id. § 9004(a). Since 1978, when the California Supreme Court decided Schmitz v. Younger, it has been clear that the Attorney General has no authority to withhold issuance of a title and summary because in judges that a proposed initiative is unconstitutional. In that case, the petitioner submitted a proposed initiative to the Attorney General for a circulating title and summary. 21 Cal.3d at 92. The measure would have (a) made it unlawful for any teacher to strike, (b) prohibited campaign contributions by teacher's organizations, and (c) prevented tax revenues from being used to provide transportation for purposes of racially balancing the public schools. Id. Attorney General Evelle J. Younger refused to issue the title and summary because he judged it to be in violation of the single-subject rule, Cal. Const., art. II, § 8(b). Id. The proponent filed an original petition for writ of mandate in the California Supreme Court, id. at 92, which issued a peremptory writ ordering Attorney General Younger to issue the circulating title and summary, id. at 93, over the dissent of one Justice, id. at 93-102.1 The majority held that the people's right of initiative must be fully preserved by preventing it from becoming bogged down in litigation. 21 Cal.3d at 92. It noted that in furtherance of this goal, in other contexts the courts "have narrowly circumscribed the rights of ministerial officials to impede or delay the initiative process." Id. The majority affirmed that, similarly: 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
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The dissenter, Justice Manuel, argued that the Attorney General had both the constitutional authority and the duty to withhold title and summary. 21 Cal.3d at 94. The majority rejected his analysis. Id.
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when the proposal is in proper form and complies with statutory and constitutional procedural requirements. Id. at 92-93. The majority found that the question of whether the proposed measure violated the Constitution "involves difficult questions that only a court may resolve." Id. at 93. 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. Id. The Supreme Court expressly recognized the Attorney General's discretionary right to challenge the validity of a proposed measure by bringing timely and appropriate legal action,2 but was clear that the Attorney General has no authority to withhold issuance of title and summary without prior judicial authorization. Id The Attorney General's duty to issue a ballot title and summary is similarly ministerial. Compare Cal. Elec. Code §§ 9000-9009 (governing circulating title and summary for an initiative) with Cal. Elec. Code §§ 9050-9054 (governing ballot title and summary for an initiative). Although there is no case precisely on point, it is plain that the reasoning of Schmitz v. Younger would govern any attempt by the Attorney General to withhold a ballot title and summary if he judged that the measure was unconstitutional. CONCLUSION Proposition 8 was not placed on the ballot "despite the Attorney General's position that Proposition 8 is unconstitutional." Doc. #413 at 2:2-4. The Attorney General's position on the constitutionality of Proposition 8 was irrelevant to whether the measure would appear on the

However, as discussed at the outset, the pre-election review of substantive constitutional challenges is disfavored "absent some clear showing of invalidity." Independent Energy Producers Ass'n v. McPherson, 38 Cal.4th at 1029.
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ballot because under California law the Attorney General has no authority to prevent the submission of a qualified initiative to the voters.

Dated: January 14, 2010

Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California JONATHAN K. RENNER Senior Assistant Attorney General GORDON BURNS Deputy Solicitor General

/s/ Tamar Pachter TAMAR PACHTER Deputy Attorney General Attorneys for Defendant Attorney General Edmund G. Brown Jr.
SA2009310603 20245256

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