HJTA-Bowen Reply Brief

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C060441

COURT OF APPEAL OF THE STATE OF CALIFORNIATHIRD APPELLATE DISTRICT

H

OWARD

J

ARVIS

T

AXPAYERS

A

SSOCIATION

,

ET AL

.

,

Petitioners and Appellants,

v.

D

EBRA

B

OWEN

,

S

ECRETARY OF

S

TATE

,

ET AL

.

,

Respondents and Respondents

.Appeal from a Judgment by the Superior Court, Sacramento CountyCase No. 34-2008-80000048-CU-WM-GDS, Hon. Michael P. Kenny

APPELLANTS’ REPLY BRIEF

Trevor A. Grimm, SBN 34258Jonathan M. Coupal, SBN 107815Timothy A. Bittle, SBN 112300Howard Jarvis Taxpayers Foundation921 Eleventh Street, Suite 1201Sacramento, CA 95814Telephone:(916) 444-9950Facsimile:(916) 444-9823

Attorneys for Appellants

1

INTRODUCTION

The Legislature’s brief contains scarcely any response to the principalthrust of this appeal, which is that the Legislature violated its constitutionalduty to “provide for ... free elections” (Cal. Const., art. II, § 3) and to “prohibitimproper practices that affect elections” (

id.

, art. II, § 4) when, as theproponent of a measure on the ballot, it required its own propaganda to beprinted as the “impartial” information that voters saw for that measure.Although the Legislature’s brief denies that article II, sections 3 and 4require it to protect elections from manipulation, it never offers a betterexplanation of those sections.While much of the Legislature’s brief is spent attacking argumentsappellants did not make, one of those attacks is worth defending because in itthe Legislature has acknowledged another legal basis for holding that it maynot write the impartial ballot materials for its own measures.This Reply Brief will address the Legislature’s points in the order theywere presented, and along the way correct those accusations that misrepresentour theory of the case.

ITHE APPEAL SHOULD NOT BE DISMISSEDFOR MOOTNESS, OR FOR SEEKING DIFFERENT RELIEF

Under the heading “The Appeal Should be Dismissed as Moot,” theLegislature actually makes two arguments for dismissing this appeal. First itargues that the action is moot because the election has passed. Respondent’sBrief (“RB”) at 3. In addition, the Legislature contends that “Appellants nowseek relief never requested below, as they ask this Court to ‘prohibit[] theLegislature from writing the impartial descriptions and analyses of its ownballot measures.’” RB at 4.Appellants do not seek new relief. The relief appellants seek in this

2court is the same relief sought in the Superior Court. Appellants’ petition inthe Superior Court alleged: “Removing from the ballot the only impartialdescriptions and summary that voters generally see, and substituting advocacyin their place, written by the author and proponent of the measure, constitutes“improper practices that affect elections,” which the Legislature isconstitutionally prohibited from doing.” CT at 6:4. The petition prayed “Thata peremptory writ of mandate issue under seal of this Court authorizing anddirecting respondent Debra Bowen to request an impartial Ballot Label, Titleand Summary from the Attorney General, and to use them in lieu of the BallotLabel, Title and Summary furnished by the Legislature.” CT at 9:10.The appeal asks this Court to find, as alleged, that “the Legislature isconstitutionally prohibited from doing” what it did, and that the Superior Courterred by not granting the prayed-for writ of mandate.Regarding mootness, it is true appellants have not alleged that issuingthe writ today would benefit them, or alter the outcome of the November 4,2008, election. However, appellants traced for this Court the Legislature’srecent and increasing election strategy of supplanting the Attorney General’simpartial analyses with its own Ballot Label, Title, and Summary designed toinfluence the vote on the measures it sponsors.In light of this evidence, appellants argued: “A decision is important forfuture reference because the issue is not only capable of repetition, it isobviously a growing trend. Because election writs must be processed inextreme haste to accommodate the printing of ballots (Elec. Code § 13314(a)(2)), which often makes appellate review infeasible, the issue may continueto evade review if this Court does not address it now.” AOB at 4.California law supports this request. In

Huening v. Eu

(1991) 231Cal.App.3d 766, the proponent of a statewide initiative sued to require theSecretary of State to delete certain language from the opponents’ ballot

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