Case No.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT

HOWARD JARVIS TAXPAYERS ASSOCIATION and JON COUPAL, Petitioners, v. DEBRA BOWEN, in her official capacity as the Secretary of State of the State of California, Respondent. LEGISLATURE OF THE STATE OF CALIFORNIA; and THOMAS A. WILLIS, Real Parties In Interest.

ORIGINAL WRIT PROCEEDING IMMEDIATE RELIEF REQUESTED

PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND REQUEST FOR IMMEDIATE STAY UNTIL JULY 23, 2012; ELECTION MATTER PRIORITY.

Charles H. Bell, Jr~(SBN 060553) Brian T. Hildreth (SBN 214131) BELL, McANDREWS & HILTACHK, LLP 455 Capitol Mall, Suite 600 Sacramento, CA 95814 Telephone: (916) 442-7757 Facsimile: (916) 442-7759 Attorneys for Petitioners HOWARD JARVIS TAXPAYERS ASSOCIATION and JON COUPAL

State of California Court of Appeal Third Appellate District CERTIFICATE OF INTERESTED ENTITIES OR PERSONS California Rules of Court, rules 8.208, 8.490(i), 8.494{ c), 8.496{ c), or 8.498(d) Court of Appeal Case Caption: HOWARD JARVIS TAXPAYERS ASSOCIATION and JON COUPAL,
v.

DEBRA BOWEN, in her official capacity as Secretary of State of the State of California Court of Appeal Case Number: Please check here if applicable: _

u:Y There are no interested

entities or persons to list in this Certificate as defined in the California Rules of Court. Nature of Interest

Name of Interested Entity or Person (Alphabetical order, please.) 1. 2. 3. 4.

Please attach additional sheets with Entity or Person Information, if

Date: July 9, 2012

Printed Name: Charles H. Bell, Jr. State Bar No: 060553 Firm Name & Address: Bell, McAndrews & Hiltachk, LLP 455 Capitol Mall, Suite 600, Sacramento, CA 95814 Party Represented: Petitioners Approved for Optional Use Within the Third Appellate District. 0110112007

TABLE OF CONTENTS VERIFIED PETITION FOR WRIT OF MANDATE INTRODUCTION FIRST CAUSE OF ACTION: PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND REQUEST FOR STAY A. Timeliness ofPetition B. The Parties C. Trial Court Proceedings D. Jurisdiction E. Need for Writ Relief PRAYER ; 1 1

3 3 4 5 5 6 8 10 10 11 17 17

MEMORANDUM OF POINTS AND AUTHORITIES GROUNDS FOR EXTRAORDINARY INTRODUCTION ARGUMENT I. THIS COURT HAS ORIGINAL JURISDICTION II. THIS COURT HAS THE AUTHORITY AND THE DUTY TO CORRECT AN ERROR IN THE PREPARATION OF OFFICIAL STATE VOTER PAMPHLET III. A.B. 1499 DID NOT MAKE "AN APPROPRIATION" IV. A.B. 1499's SUBSTANTIVE AMENDMENT IS NOT "BUDGETRELATED" STAY REQUEST

17 18

19

1

V. A.B. 1499 CIRCUMVENTS THE CONSTITUTION'S REQUIREMENTS FOR SUBSTANTIVE LEGISLATION AND VITIATES THE 2/3DS REQUIREMENT FOR URGENCY LEGISLATION VI. THE COURT HAS JURISDICTION TO INTERPRET THE CONSTITUTION CONCLUSION VERIFICATION by Howard Jarvis Taxpayers Association VERIFICATION by Jon Coupal.. CERTIFICATE OF COMPLIANCE

23 .

26 28 29 30 31

11

TABLE OF AUTHORITIES
STATE CASES

Andal v. Miller (1994) 28 Cal.App.4th 358 Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384 California Radioactive Materials Management Forum v. Department of Health Services, supra, 15 Cal.App.4th California School Boards Assn v. State of California (2011) 192 Cal.App.4th 770 County of San Diego v. State of California, supra, 15 Cal.4th Farley v. Healey (1967) 67 Cal.2d 325 Harbor v. Deukrnejian (1987) 43 Cal.3d 1078 Jolicoeur v. Mihaly (1971) 5 Cal.3d 565 Palma v. US. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 Planned Parenthood Affiliates of California v. Swoap (1985) 173 Cal.App.3d 1187 Schab arum v. California Legislature (1998) 60 Cal.App.4th 1205 Stratton v. Green (1872) 45 Cal. 149; Wood v. Riley (1923) 192 Cal. 293; :

passim

21

27 18 19 17 20,21 17 8, 11 18,21 27 18,21 18

111

STATUTES

Code Civ. Proc., § 1085 §1086 Elec. Code, Div. 9, Chp. 1 § 321 § 9030 §12172.5 § 13314 § 13115
STATE CONSTITUTIONAL PROVISIONS

1, 6,10,17 1,6

16 6 13 4 passim passim

Cal. Const., art. II, § 9 art. IV art. IV, § 8 art. VI, § 10 art. IV § 12
OTHER AUTHORITIES

3,21,22,24,25 15 passim 1, 6, 17 passim

Our Children, Our Future, et al. v. Bowen, et al. Sacramento County Superior Court No. 34-2012-80001194

passim

IV

TO THE HONORABLE PRESIDING JUSTICE AND THE ASSOCIATE JUSTICES OF THE CALIFORNIA COURT OF APPEAL, THIRD APPELLATE DISTRICT: Petitioners HOWARD JARVIS TAXPAYERS ASSOCIATION and JON COUPAL ("Petitioners") hereby respectfully bring this original proceeding for Writ of Mandate or other extraordinary relief and request for stay until this instant Court can hear and decide the present writ, and in any event not later than July 23,2012, due to the imminence of the forthcoming General Election. (Cal. Const., art. VI, § 10; Code Civ. Proc., §§ 1085, 1086 & Elec. Code, § 13314; and see Andal v. Miller (1994) 28 Cal.AppAth 358, 361.) INTRODUCTION This action arises out of the misuse of the budget appropriations process set forth in article IV, section 12 of the California Constitution in violation of article IV, sections 8 and 12. This Court should block the implementation of A.B. 1499 as unconstitutional under California Constitution, article IV, section 8(c) and (d), and section 12(e)(2). In addition, this Court should stay all further proceedings on this matter and presently being heard in Sacramento County Superior Court, Case No. 342012-80001194 (Our Children, Our Future, et al., vs. Debra Bowen, et al.). The Legislature has acted unlawfully and unfairly to alter the ballot order to ensure that Governor Brown's tax initiative (SOS # 1578) would be placed first on the ballot. This legislative legerdemain was 1

accomplished by amending Elections Code section 13115 to ensure that initiative measures containing constitutional amendments were treated with the priority accorded by that statute to constitutional amendments placed on the ballot by the Legislature itself. The Legislature designated a string of spot bills as trailer bills in the budget adopted on June 15,2012, including A.B. 1499. When the main budget bill was enacted on June 15,2012, A.B. 1499 was an empty vessel.
It did not notice an amendment to the California Elections Code or any

provision of the statutes. Moreover, the budget bill, A.B. 1464, contained a regular appropriation of$5,733,000 for the production, printing and mailing of the State Voter Pamphlet. Nonetheless, on June 25,2012, and without any prior notice, A.B. 1499 was amended to include amendments to Elections Code section 13115 amending that statute in a manner that would ensure the Governor's lateverified tax initiative, a constitutional amendment, would be placed among those constitutional amendments entitled to prior ballot placement. Ordinarily, the Governor's measure would have been placed 9th on the ballot, just after another similar tax measure (SOS # 1574.) A.B. 1499 contained a legislative finding that the bill was "budget related" and added a sham $1,000 appropriation to the Secretary of State as a fig leaf. Adoption of the bill and signature by the Governor made SB 1499 effective immediately, rather than January 1,2013 when a genuine, non-budget 2

related bill would become effective, and deprived the public of the opportunity of referendum under article II, section 9 of the Constitution. The Governor signed A.B. 1499 on June 27,2012 and it was enrolled on June 27, 2012. While such a legislative amendment would have been proper if enacted as a regular bill to become effective on January 1, the extraordinary and unconstitutional way in which the Legislature chose to do that is what brings the parties before this Court. FIRST CAUSE OF ACTION: PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND REQUEST FOR STAY A. Timeliness of Petition 1. Petitioner brings this Petition on July 9,2012, hours after the

Sacramento County Superior Court, in Case No. 34-2012-80001194 (Our Children, Our Future, et al., vs. Debra Bowen, et al.) (Judge Michael Kinney presiding) denied a Petition for Writ of Mandate seeking an order to restore the ordering of ballot initiatives to the ballot prior to the enactment of A.B. 1499 on purely statutory grounds. 2. After said ruling, which also denied a an injunction to prevent the

Secretary of State from assigning proposition numbers, Petitioner's counsel began forthwith researching and then drafting this writ. The instant Writ was filed and served as soon as practicable. This Petition is timely. /II

3

B. The Parties 3. Petitioner HOWARD JARVIS TAXPAYERS ASSOCIATION is a

duly authorized California nonprofit corporation. Petitioner HOWARD JARVIS TAXPAYERS ASSOCIATION also was an Amicus Curiae in a related case pending before the Sacramento County Superior Court, Case No. 34-2012-80001194 (Our Children, Our Future, et al., vs. Debra Bowen, et al.). 4. Petitioner JON COUPAL is and at all times mentioned in this

petition was a competent adult, a citizen of the United States, and an elector registered to vote in the State of California. As an elector, Petitioner has standing to bring this action pursuant to Elections Code section 13314(a)(1). 5. Respondent DEBRA BOWEN ("Respondent") is the California

Secretary of State. As the Secretary of State, Respondent has a ministerial non-discretionary duty to administer the provisions of the Elections Code, to see that elections are efficiently conducted and that state election laws are enforced, and not to violate the laws of the State, of California. (See Elec. Code, § 12172.5.) 6. Real Party In Interest LEGISLATURE OF THE STATE

CALIFORNIA, is the constitutionally authorized legislative body of the State of California. 7. Real Party in Interest THOMAS A. WILLIS is the proponent of
4

Governor Brown's tax initiative (SOS File No., 1578). C. Trial Court Proceedings 8. On July 9,2012, the Sacramento County Superior Court, in Case No.
VS.

34-2012-80001194 (Our Children, Our Future, et al.,

Debra Bowen, et

al.) (Judge Michael Kinney presiding) denied a Petition for Writ of Mandate seeking an order to restore the ordering of ballot initiatives ballot prior to the enactment of A.B. 1499 on statutory and not constitutional grounds. Petitioner also sought an injunction to prevent the Secretary of State from assigning proposition numbers, which would have the effect of determining the order of appearance for measures on the November ballot. 9. The instant proceeding for original Writ of Mandate is related to the
0

the

underlying matter, but not a writ challenge to that decision. A number of vital issues were not directly raised in the lower court case, and thus the need for an original writ through this Court. D. Jurisdiction 10. Pursuant to Elections Code section 13314(a)(l), "Any elector may

seek a writ of mandate alleging that an error or omission has occurred, or is about to occur, in the placing of any name on, or in the printing of, a ballot, sample ballot, voter pamphlet, or other official matter ...." An "elector" means any person who is a United States citizen 18 years of age or older and a resident of an election precinct at least 15 days prior to an election." 5

(Elec. Code, § 321.) Any voter or taxpayer may seek a writ of mandate pursuant to Code of Civil Procedure sections 1085 and 1086, and Elections Code 13314 alleging that a public official has, or is about to, violate a present and ministerial duty. 11. The California Constitution, Code of Civil Procedure and case law

authority provide that original writs of mandate may be taken in the California Court of Appeal. (Cal. Const., art. VI, § 10; Code Civ. Proc., §§ 1085, 1086; and see Andal v. Miller (1994) 28 Cal.App.4th 358,361.) 12. Court: E. Need for Writ Relief 13. Petitioner has no plain, speedy and adequate remedy at law, other The relief sought in this petition is within the jurisdiction ofthis

than the relief sought in this petition. As a matter of law, the California Legislature has misused the budget appropriations process set forth in article IV, section 12 of the California Constitution in violation of article IV, sections 8 and 12. Said misuse will result in an erroneous numbering (and thereby actual ordering) of the ballot measures set to appear on the November 6, 2012 statewide ballot. Without this Court's immediate action, Respondent Secretary of State will assign proposition numbers, and thereafter cause the ballot materials to be printed using said erroneous numbering. 14. Because the Secretary of State is prepared to immediately release the
6

ballot numbering for all qualified Legislative constitutional amendments, ballot initiatives and one referendum tomorrow, July 10,2012, an extraordinary stay is warranted to stay the matter until this Court can consider the matter. 15. If a temporary stay is not issued, the Petitioners and all voters will

suffer irreparable injury to their constitutional rights and statutory rights with respect to the Legislature's unlawfully interfering in elections rules to favor the Governor's initiative by placing it at the top of the ballot, in disregard of the California Constitution. 16. Therefore, this Petition serves a pressing and vital public interest

which ifnot addressed presently, will recur, and foreseeably so, countless times in the future. That is: the Legislature will be licensed to continue misusing the budget process to interfere with the conduct of state elections in violation of the California Constitution. California law clearly dictates the procedure for elections and in this particular circumstance. However, Real Parties Legislature and Wills, and Respondent Bowen seek to have the law applied unevenly in their own favor 17. This Court may grant a temporary stay pending review of the writ,

whether it requests oral argument or not. Ballot measure proponents will not suffer any harm until such time, nor will there be any delay that would interfere with the preparation of opening ballot arguments and oppositions (due at the close of business tomorrow, July 10,2012).
7

The next set of

deadlines for the ballot arguments are the exchanges of rebuttal arguments (July 18,2012) and final release of the official materials (title and summary, Legislative Analyst's Analysis, and related official materials on July 23,2012). 18. This case meets the procedural prerequisites for issuance of a

peremptory writ of mandate in the first instance. (Palma v.

u.s. Industrial

Fasteners, Inc. (1984) 36 Ca1.3d 171; Andalv. Miller, supra, 28 Cal.AppAth at p. 368.) 19. Dealing with these issues now, as pressing as they are for the parties

here, are even more so for the public given the impact on our State's democracy and intentional weakening of the State Constitution. 20. The Court's efforts here will have imn:iediate impact and will, in

actuality, preserve the ballot as it was meant to be presented to voters at the forthcoming election. 21. A stay until this instant Court can hear and decide the present writ,

and in any event not later than July 23, 2012 is practical and reasonable. PRAYER WHEREFORE, Petitioners pray that a writ of mandate and extraordinary stay issue under seal of this Court commanding Respondent Secretary of State, its officers, agents and all other persons acting on its behalf to desist and refrain from taking any further action relative to the numbering of ballot measures for all qualified Legislative constitutional amendments, 8

ballot initiatives and one referendum tomorrow, which is set to occur tomorrow (July 10,2012), and further directing Respondent and Real Parties In Interest to show cause before this Court, at a time and place then or thereafter specified by Court order, why an order should not be entered invalidating A.B. 1499 and maintaining the statutory ballot proposition numbering process set forth in California Elections Code section 13115 placing initiative measures, including constitutional and statutory initiatives, following constitutional measures placed on the ballot by the Legislature, that in place prior to A.B. 1499's unconstitutional alterations to the California Elections Code, or to show cause before this Court, at a time and place then or thereafter specified by Court Order, why Respondent has not maintained the statutory ballot proposition numbering process in place prior to enactment of A.B. 1499's unconstitutional alterations to the California Elections Code.

Dated: July 9,2012

Respectfully Submitted, BELL, McANDREWS & HILTACHK, LLP

By:

-+---n--,:;----tJL_______,.L-/)_______::__'
~ES H. BELL, JR.

_

BRIAN T. HILDRETH Attorneys for Petitioners HOWARD JARVIS TAXPAYERS ASSOCIATION and JON COUPAL

9

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE Petitioners HOWARD JARVIS TAXPAYERS ASSOCIATION and JON COUPAL ("Petitioners") hereby respectfully bring this original Writ of Mandamus under Elections Code Section 13314, Code of Civil Procedure Section 1085, Article VI, Section 10 of the California Constitution, and Andal v. Miller (1994) 28 Cal.App.4th 358,361. GROUNDS FOR EXTRAORDINARY STAY REQUEST Because the Secretary of State is prepared to release the ballot numbering for all qualified Legislative constitutional amendments, ballot initiatives and one referendum tomorrow, July 10,2012, an extraordinary stay is warranted to stay the matter until this court can consider the matter. If a temporary stay is not issued, the Petitioners and all voters will suffer irreparable injury to their constitutional rights and statutory rights with respect to the Legislature's rejiggering of the election law rules to favor the Governor's initiative by placing it first on the ballot, in disregard of the Constitution. The Court may grant a temporary stay pending review of the writ, whether it requests oral argument or not. Ballot measure proponents will not suffer any harm until such time, nor will there be any delay that would interfere with the preparation of opening ballot arguments and oppositions (due at the close of business tomorrow, July 10,2012). The next set of

10

deadlines for the ballot arguments are the exchanges of rebuttal arguments (July 19,2012) and final release of the official materials (title and summary, Legislative Analyst's Analysis, and related official materials on July 23,2012). (See Secretary of State's Election Calendar, RJN, Exhibit

"A" incorporated by reference herein.) The case meets the procedural prerequisites for issuance of a peremptory writ of mandate in the first instance. (Palma v.

us. Industrial

Fasteners, Inc. (1984) 36 Cal.3d 171;

Andal v. Miller, supra, 28 Cal. App. 4th at p. 368.) INTRODUCTION This action concerns constitutional violations that affect the November 2012 election -- misuse of the budget appropriations process set forth in Article IV, section 12 of the California Constitution -- in violation of Article IV, sections 8 and i2. This Court should block the implementation of A.B. 1499 as unconstitutional under California Constitution, article IV, section 8(c) and (d), and section 12(e)(2). A.B. 1499, a purported budget trailer bill (a bill concerning an "appropriation" as defined in Article IV, section 12), is a sham "appropriation" and the substantive provisions of the bill amending the Elections Code are not related to the budget. In this case, the Legislature dishonestly and unfairly altered the ballot order to ensure that Governor Brown's tax initiative, the "Schools and Safety Protection Act" (SOS # 1578) (RJN, Exhibit "B" incorporated
11

by this reference herein) would be placed first on the ballot. This legislative legerdemain was accomplished by amending Elections Code section 13115 to ensure that initiative measures containing constitutional amendments were treated with the priority accorded by that statute to constitutional amendments placed on the ballot by the Legislature itself. While such a legislative amendment would have been proper if enacted as a regular bill to become effective on January 1, the extraordinary and unconstitutional way in which the Legislature chose to do that is what brings the parties before this Court. 1 Proposition 25 (2010) allows the Legislature to enact the state budget - including budget trailer bills -- by majority vote. A bill is "budget-related" if it makes an appropriation for the regular expenses of the state. Budget bills and their trailer bills become law effective immediately upon passage and signature by the Governor. (Cal. Const., art. IV, section 12.) However, A.B. 1499 does not make "an appropriation" and is not "budget-related. " /II

1 Petitioners deny that the Respondent has the authority to adopt the ballot order purportedly effected by A.B. 1499 as a matter of her discretion. To do so would misread the current Elections Code section 13115 and fly in the face of decades of ballot ordering that placed both statutory and constitutional initiatives on the ballot in order of qualification.

12

The Legislature designated a string of spot bills as trailer bills in the budget adopted on June 15,2012, including A.B. 1499. When the main budget bill was enacted on June 15,2012, A.B. 1499 was an empty vessel. (See RJN, Exhibit "C" incorporated by this reference herein.) It did not amend the Elections Code or any provision of the statutes. Moreover, the budget bill, A.B. 1464, contained a regular appropriation of$5,733,000 for the production, printing and mailing of the State Voter Pamphlet. (See RJN, Exhibit "D" incorporated by this reference herein.) On June 25,2012, A.B. 1499 was amended to include amendments to Elections Code section 13115 amending that statute in a manner that would ensure the Governor's late-verified tax initiative, a constitutional amendment, would be placed among those constitutional amendments entitled to prior ballot placement. (See RJN, Exhibit "C".) Ordinarily, the Governor's measure would have been placed 9th on the ballot, just after Petitioner Molly Munger's "Our Children, Our Future" initiative (SOS # 1574.)2 The bill contained a legislative finding that the bill was "budget

2

Petitioner RJTA was not a party to a Superior Court proceeding (Our Children, Our Future et al. v. Debra Bowen, et al., ("OCOF"), Sac. Superior Ct. # 34-2012-80001194) involving an Elections Code § 9030 & 13314 challenge to the Secretary of State's purported placement of the Governor's initiative (SOS #1598) ahead of the Munger Initiative. OCOF had argued the unconstitutionality of the placement of the Governor's initiative ahead of the OCOF initiative, but did not pursue the argument in the trial court. RJTA, over the objections of Real Party in Interest Thomas A. Willis on behalf of the Governor's initiative, filed an amicus curiae brief in the OCOF case solely on constitutional grounds. The Superior Court did 13

related" and added a sham $1,000 appropriation to the Secretary of State as a fig leaf. Adoption of the bill and signature by the Governor made SB 1499 effective immediately, rather than January 1,2013 when a genuine, non-budget related bill would become effective. This matter directly affects the ballot order of all initiatives and one referendum measure in addition to the Governor's initiative, as a consequence. California Elections Code, § 13115, provides for the order in which ballot measures are placed on the ballot. There is no indication in the legislative history that Section 13115, or its predecessors, were enacted other than as regular bills affecting substantive policy. There is no legislative history that these enactments were made as appropriation in the budget or as trailer bills related to a budget. Section 13115 provided that all ballot measures "shall appear" on the ballot in the following order: (a) Bond measures in the order in which they qualify. (b) Constitutional amendments in the order in which they qualify. (c) Other legislative measures in the order in which they are approved by the Legislature. (d) Initiative measures in the order in which they qualify. not decide the constitutional issue, and the basis raised in this original writ is solely on constitutional grounds. In denying the OCOF petition the trial court granted a temporary stay of the decision until 5:00 p.m. today. The petitioner in OCOF advised the parties to that case that it would not proceed with a writ of mandate directed to the Superior Court seeking a further stay and to reverse the trial court decision in that matter at around 11:25 a.m. this morning, following the trial court's decision against OCOF.

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(e) Referendum measures in the order in which they qualify. On June 27,2012, the Legislature by simple majority vote enacted A.B. 1499, which amended the ballot order established in Section 13115 as follows: (a) Bond measures, including those proposed by initiative, in the order in which they qualify. (b) Constitutional amendments, including those proposed by initiative, in the order in which they qualify. (c) Other legislative Legislative measures, other than those described in subdivision (a) or (b), in the order in which they are approved by the Legislature. (d) Initiative measures, other than those described in subdivision (a) or (b), in the order in which they qualify. (e) Referendum measures in the order in which they qualify. Section 3 of A.B. 1499 also contained an appropriation of$l,OOO from the General Fund to the Secretary of State "to implement the requirements of this act." Section 40f A.B. 1499 provided that "[t]his act

is a bill providing for appropriations relate to the Budget Bill within the , . meaning of subdivision (e)of Section 12 of Article IV of the California Constitution, has been identified as related to the budget in the Budget Bill, and shall take effect immediately." The Governor signed A.B. 1499 on June 27,2012 and it was enrolled on June 27, 2012. A.B. 1464 (Ch. 21, Stats. 2012, § 39.00, p. 723), the main Budget Bill, adopted on June 15,2012, references A.B. 1499 as one of79 bills as budget trailer bills. Prior to June 25, 2012, when A.B. 1499 was adopted,

15

the bill was a "spot bill." The bill did not contain any provision amending the Elections Code at the time of the adoption of the Budget Bill. A.B. 1464 contains line item appropriation at Budget Line Item No. 0890-0010001 to the Secretary of State of $5,733,000 for the preparing, printing and mailing of the state ballot pamphlet: "3. Of the funds appropriated in this item, $5,733,000 is available for preparing, printing, and mailing the state ballot pamphlet pursuant to Article 7 (commencing with Section 9080) of Chapter 1 of Division 9 of the Elections Code. Any unexpended funds pursuant to this provision shall revert to the General Fund." (A.B. 1464, p. 70; Copy attached as RJN, Exhibit "D".)

The appropriation of$l,OOO in A.B. 1499 for the Secretary of State to implement Elections Code § 13115 amounts to 0.000017% of the appropriation for the normal operating expenses of the Secretary of State just to prepare, publish and mail the State Ballot Pamphlet. That sum isn't even a rounding error as a percentage of the single line item of spending. The Senate Committee on Budget and Fiscal Review described its fiscal effect as follows: "This bill would have minimal fiscal impact for the Secretary of State. (Copy of Analysis attached as RJN, Exhibit "E" incorporated by this reference herein.)

III III

16

ARGUMENT I. THIS COURT HAS ORIGINAL JURISDICTION This Court has original jurisdiction to consider election writ matters under Article VI, section 10 of the Constitution and Code of Civil Procedure §1085 and Elections Code § 13314. Extraordinaryreliefis available in these circumstances notwithstanding the pendency of the superior court proceeding. (Andal v. Miller (1994 ) 28 Cal.AppAth 358, 360, citing Farley v. Healey (1967) 67 Cal.2d 325,326-327; Mihaly (1971) 5 Cal.3d 565, 570, fns. 1-2.) II. THIS COURT HAS THE AUTHORITY AND THE DUTY TO CORRECT AN ERROR IN THE PREPARATION OF OFFICIAL STATE VOTER PAMPHLET As stated previously, the Elections Code provides judicial authority to correct errors made in the preparation of official election/voter materials. Elections Code section 13314 provides in part: (a)(1) Any elector may seek a writ of mandate alleging that an error or omission has occurred, or is about to occur, in the placing of any name on, or in the printing of, a ballot, sample ballot, voter pamphlet, or other official matter, or that any neglect of duty has occurred, or is about to occur. (2) A peremptory writ of mandate shall issue only upon proof of both of the following: (A) that the error, omission, or neglect is in violation of this code or the Constitution, and (B) that issuance of the writ will not substantially interfere with the conduct of the election. (Italics added.) The placement of the Governor's initiative in first place on the ballot, pursuant to an unconstitutional enactment, A.B. 1499, violates 17 Jolicoeur v.

Article IV, sections 12 and 8 and Article II, section 8 and 9. III. A.B. 1499 DID NOT MAKE "AN APPROPRIATION" The $1,000 amount set forth in A.B. 1499 is not an "appropriation." A legislative "appropriation" has been judicially defined as one "by which a named sum of money has been set apart in the treasury and devoted to the payment of a particular claim or demand." (Stratton v. Green (1872) 45 Cal. 149, 151; Woodv. Riley (1923) 192 Cal. 293, 303; Planned Parenthood Affiliates of California v. Swoap (1985) 173 Cal.App.3d 1187, 1198.) In California School Boards Assn v. State of California (2011) 192 Cal.App.4th 770, the Court of Appeal rejected a legal effort by state school boards to compel the state to cease deferring payment for state mandated school programs. The court noted that the Legislature routinely had made similar $1,000 appropriations that did not fund the state mandates in question, and affirmed the petitioners claim and the State's acknowledgement that a $1,000 state appropriation (what the State called a "deferred appropriation" but the court called "a nominal payment") of a state-mandated claim in no way satisfied the state mandate. The court noted that the Legislature had provided an alternate remedy if the state failed to appropriate funds for the state mandated program: "If the Legislature refuses to appropriate money for [the] reimbursable mandate, the local agency [or school district] may file 'an action in declaratory relief to declare the mandate unenforceable 18

and enjoin its enforcement''' under section 17612, subdivision (c). (County of San Diego v. State of California, supra, 15 Ca1.4th at p. 82.) (Id. at p. 785.) The Court concluded: "we agree with the trial court's determination that a deferred appropriation is not a funded mandate within the meaning of article XIII B, section 6, and the implementing statutory provisions." (Id. at p.786.) Adoption of A.B. 1499 as a budget trailer bill by majority vote, becoming effective immediately, circumvented the provisions of article IV, section 12. Article IV, section 8, and article II, section 9 of the California Constitution, because the $1,000 appropriation is not for the ordinary expenses of production, printing and distribution of the State Ballot Pamphlet, and because the amendment to Elections Code, § 13115 was not an appropriation. That is, the substantive provision of A.B. 1499, standing alone, could have been adopted on its own before presentation of the budget. IV. A.B. 1499's SUBSTANTIVE AMENDMENT IS NOT "BUDGET -RELATED" Just as A.B. 1499 does not qualify as a bill providing for "appropriations," neither is it "related to the budget bill" within the meaning of Article IV, section 12(e)(l). We agree with the Petitioners that A.B. 1499 does not amend a statute to add or reduce state services in order to promote a balanced budget, further any fiscal or budgetary policy, or

19

assist in implementation of any provision of the state budget. Instead, the purpose and essence of A.B. 1499 is solely to effect a substantive change to the existing statutory rules for ordering ballot measures. In Harbor v. Deukmejian (1987) 43 Cal.3d 1078, the Petitioners, AFDC recipients, challenged the Governor's veto of a budget trailer bill that implemented substantive provisions of the Welfare & Institutions Code concerning the timing of applications for assistance. (Bill 1379. (Stats.l984, ch. 268, § 45.5).) Previously the Governor had used his lineitem veto to veto certain appropriations for AFDC in the main budget bill. Their petition asserted that the Governor's veto was ineffective because his veto power did not extend to disapproving parts of bills which were not appropriation measures, and that section 45.5 was not such a measure. The Court agreed, holding that the Governor should be empowered to make a determination as to how many subjects are contained in a bill presented to him for signature, and to veto parts of a bill which he determines constitute a separate subject therein. (Id. at p. 1093.) The Supreme Court said: "We do not see how it can be seriously claimed that section 45.5 qualifies as an item of appropriation under any of these definitions. It does not set aside money for the payment of any claim and makes no appropriation from the public treasury, nor does it add any additional amount to funds already provided for. Its effect is substantive. Like thousands of other statutes, it directs that a department of government act in a particular manner with regard to certain matters. Although as is common with countless other measures, the direction contained therein will require the 20

expenditure of funds from the treasury, this does not transform a substantive measure to an item of appropriation." (ld. at pp. 1089-1090.) Article IV, Section 12 Article IV, section 12, of the Constitution sets forth the constitutional process for the Governor to propose and the Legislature to adopt the state budget. The Governor's budget is accompanied by a budget bill that includes an itemized statement of all recommended state expenditures and an estimate of state revenues for the ensuing fiscal year. (Art. IV, § 12, subds. (a) & (c)(l).) The budget contains and defines

appropriations from particular funds. "No bill except the budget bill may contain more than one item of appropriation, and that for one certain, expressed purpose." An "appropriation" is defined as a "named sum of

money [that] has been set apart in the treasury and devoted to the payment of a particular claim or demand"].) (Art. IV, § 12, subd. (d); see generally Planned Parenthood Affiliates v. Swoap (1985) 173 Cal.App.3d 1187, 1197-98; Stratton v. Green (1872) 45 Cal. 149, 151.) Because the "single-subject rule" set forth in article IV, section 9, requires all bills, including a budget bill, to "embrace but one subject," any substantive statutory changes necessary to implement the Governor's proposed budget generally must be addressed in separate legislation. (See Association for Retarded Citizens v. Department of Deve lopm ental Services (1985) 38 Cal.3d 384,394.) The bills that implement substantive budget 21

appropriations are known as "budget trailer bills." Until the budget bill is enacted, the Legislature is prohibited from sending to the Governor for consideration any other bill that would appropriate funds for expenditure during the upcoming fiscal year, with limited exceptions. (Art. IV, § 12, subd. (c)(4).) Thus, substantive changes in law or revisions to existing government programs that might be needed in order to implement the spending priorities reflected in the budget bill must be addressed by the Legislature in separate legislation. (See Art. IV, § 9.) Since many of these bills "provid[ e] for appropriations related to the budget bill" (see Art. IV, § 12, subd. (e)), pursuant to Article IV, section 12, subdivision (c)(4)'s constitutional mandate, the Legislature cannot, on its own authority, send them to the Governor until after the budget bill has been enacted. Proposition 25 - 2010 The voters amended Article IV, section 12, at the November 2,2010, general election, in Proposition 25, which amended Article IV, section 12, subdivision (d), to exempt General Fund appropriations in the budget bill and in other bills "related to the budget" from the two-thirds vote requirement. As amended, Article IV, section 12, subdivision (d), provides: "No bill except the budget bill may contain more than one item of appropriation, and that for one certain, expressed purpose. Appropriations from the General Fund of the State, except appropriations for the public schools, and appropriations in the budget bill and in other bills providing for appropriations related 22

to the budget bill, are void unless passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring." (Art. IV, § 12, subd. (d) [language added by Proposition 2' s amendment in italics].) Proposition 25 likewise amended section 12 to permit the budget bill to take effect immediately (not a change in itself, but permissible under Proposition 25 by a majority vote of each house of the Legislature). Previously, the 2/3ds vote requirement was consonant with the 2/3ds vote requirement for urgency bills, so Proposition 25 created a majority vote exception to the urgency vote requirement. (See Art. IV, § 12, subd. (e)(l).) V. A.B. 1499 CIRCUMVENTS THE CONSTITUTION'S REQUIREMENTS FOR SUBSTANTIVE LEGISLATION AND VITIATES THE 2/3DS REQUIREMENT FOR URGENCY LEGISLATION While the Constitution provides that "the budget bill and other bills providing for appropriations related to the budget bill" may "take effect immediately upon being signed by the Governor or upon a date specified in the legislation." (Cal. Const., art. IV § 12(e)(l) (emphasis added).) However, the Constitution defines "other bills ... related to the budget bill" to mean "bills identified as related to the budget in the budget bill passed by the Legislature." (CaL Const., art. IV § 12(e)(l).)

These provisions of the California Constitution were not intended to allow the Legislature to circumvent the constitutional provisions for adoption of urgency bills in Article IV, section 8 or the public's referendum 23

rights in Article II, section 9, by classifying non-budgetary statutory changes as budget-related bills. Article IV, Section 8 Article IV, section 8, subdivision (c) provides for the effective date of statutes passed by the Legislature and signed by the Governor. Subdivision (c)(l) provides that a statute enacted at a regular session of the Legislature shall go into effect on the next January I following a 90-day period from the date of enactment of the statute. There are two exceptions which are set forth in subdivisions (c)(2) and (c)(3). Subdivision (c)(2) provides that a statute enacted by the Legislature that is subject to a referendum for which a referendum title and summary is obtained from the Attorney General and a referendum petition is qualified pursuant to subdivision (b) of section 8 of article II. Such a statute does not take effect until the voters have approved it. Subdivision (c)(3) is the second exception, and provides that statutes calling elections, or providing tax levies or appropriations for the state budget, or urgency statutes, become effective immediately. Article IV, section 8, subdivision (d) provides that urgency statutes (those necessary for the immediate preservation of the public peace, health or safety and passed by a 2/3ds vote of both houses of the Legislature, become effective immediately).

III III
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Article 11, Section 9 & Article IV, Section S(c) Article II, section 9, provides for the referendum, which is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State. Article IV, section 12(e)(1) and (2) [providing for a budget bill and budget trailer bills to become effective immediately], Article IV, section 8(c) [providing for a statute other than an urgency statute, statutes calling elections or providing for tax levies or appropriations for the current expenses of the state - set forth in the budget bill and budget trailer bills], work together with Article II, section 8 to provide that bona fide budget bills become effective immediately, and all other majority vote bills, except for urgency bills adopted by 2/3ds vote, become effective on January 1 following their adoption, unless they are subject to a qualified referendum. The grave constitutional problem of A.B. 1499, related to its attempt to rejigger the ballot order for the November 20 12 election to favor the Governor's tax initiative, is that it vitiates the 2/3rds vote requirement for adoption of urgency statutes applicable to non-budget related legislation, which the substantive amendments of Elections Code section 13115 enact. Just as the "deferred appropriation" of $1,000 does not fund a state mandate, we have established that the "sham $1,000 appropriation" is not

25

an appropriation and the substantive amendments of A.B. 1499 are not "budget-related. " While the Legislature would be perfectly free to adopt the Elections Code section 13115 amendments as regular legislation, it cannot do so with the fig-leaf of a $1,000 appropriation for a well-funded budget item contained in the regular budget for the production, printing and mailing of the State Voter Pamphlet. This Court should not countenance or endorse the grave constitutional abuse that A.B. 1499 represents, particularly as here the purpose was to change the ballot order rules in the middle of the process to seek political advantage for the Governor's tax initiative measure. VI. THE COURT HAS JURISDICTION TO INTERPRET THE CONSTITUTION Although the Legislature will argue that its authority to interpret Article IV, section 12 is a matter to which extraordinary deference is required by the separation of powers doctrine, Article III, Section 2 of the Constitution, this virtual plenary power claim is wrong, particularly where the Legislature's exercise of its power in this case tramples on other constitutional powers, including those of the People. Although the enactment of a budget bill is a legislative function, the court can review the constitutionality of a state budget act. "The enactment of a budget bill is a legislative function; it is both a right and a duty that is expressly placed upon the Legislature and the

26

Governor by our state Constitution. (Cal. Const., art. IV, § 12.) This fact calls into play the political question rule in its broad sense because it requires that we resolve the merits of the constitutional challenge to the budgetary legislation. This in tum requires that we apply the usual rules of judicial review that accord appropriate deference to the legislative and executive exercise of political prerogatives. However, deference does not mean complete forbearance. "[A] challenge to the constitutionality of an act is inherently a judicial rather than political question and neither the Legislature, the executive, nor both acting in concert can validate an unconstitutional act or deprive the courts of jurisdiction to decide questions of constitutionality." (California Radioactive Materials Management Forum v. Department of Health Services, supra, 15 Cal.App.4th at p. 869.) Because this lawsuit seeks an adjudication of the constitutionality of the state budget act, a judicial function which does not usurp the functions of the two other coordinate branches, the constitutional question was justiciable. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 121415.) Where the Legislature has attempted to bypass the ordinary process of adoption of substantive legislation as here, the court's determination is warranted.

//1 /1/
///

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CONCLUSION Petitioners HOWARD JARVIS TAXPAYERS ASSOCIATION and JON COUPAL respectfully urges this court to grant the Petitioners' petition ordering the Respondent not to follow the ballot order amendment set forth in A.B. 1499's amendment of Elections Code section 13115.

Dated: July 9, 2012

Respectfully Submitted, BEL~'$REWS

B~~H.Id,~

& HILTACHK, LP L

BRIAN T. HILDRETH Attorneys for Petitioners HOWARD JARVIS TAXPAYERS ASSOCIATION and JON COUPAL

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VERIFICATION I, JON COUPAL, am the President of Petitioner HOWARD JARVIS TAXPAYERS ASSOCATION herein. I have read this Verified Petition for Writ of Mandate and have personal knowledge of the contents stated therein and would, under the penalty of perjury, declare that the Verified Petition for Writ of Mandate is true and accurate. Executed this 9th day of July 2012 in Sacr alifornia.

JON OUPAL, President HO ARD JARVIS TAXPAYERS ASSOCIATION

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VERIFICATION I, JON COUPAL, am the Petitioner herein. I have read this Verified Petition for Writ of Mandate and have personal knowledge of the contents stated therein and would, under the penalty of perjury, declare that the Verified Petition for Writ of Mandate is true and accurate. Executed this 9th day of July 2012 in Sacramento; lifornia.

JON

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CERTIFICATE OF COMPLIANCE Counsel of Record hereby certifies that pursuant to Rule 8.204(c)(1) and 8.360(b)(l) of the CalifomiaRules of the Court, the enclosed brief of

HOWARD JARVIS TAXPAYERS ASSOCIATION and JON COUPAL is produced using 13-point Times New Roman type including footnotes and contain approximately 6,350 words, which is less than the total words permitted by the rules of the court. Counsel relies on the word count of the computer program, Microsoft Word 2010, used to prepare this brief. Dated: July 9, 2012 BE

OCANDREWS
,

'\:::,-f"1"1-\_I\J._,ES H. BELL, JR. BRIANT. HILDRETH Attorneys for Petitioners HOWARD JARVIS TAXPAYERS ASSOCIATION and JON COUPAL

h-,iJ ~.
c

& HILTACHK, LLP

-

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PROOF OF SERVICE I, the undersigned, declare under penalty of perjury that: I am a citizen of the United States, over the age of 18, and not a party to the within cause of action. My business address is 455 Capitol Mall, Suite 600, Sacramento, CA 95814. On July 9,2012, I served the following: • PETITIONERS' PETITION FOR WRIT OF MANDATE AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

on the following party(ies) in said action: Hon. Michael P. Kinney Sacramento Superior Court 720 Ninth Street Sacramento, CA 95814 Superior Court

ROSS MOODY Attorneys for Respondent Deputy Attorney General DEBRA BOWEN, in her official 455 Golden Gate Avenue, Suite 11000 capacity as the Secretary of State San Francisco, CA 94102-7004 of the State of California Telephone: (415) 703-1376 Facsimile: (415) 703-1234 Email: Ross.Moody@doj.ca.gov THOMAS A. WILLIS Email: twcmrjp.com KAREN GETMAN Email: kg@rjp.com Remcho Johansen & Purcell, LLP 201 Dolores Avenue San Leandro, CA 94577 Telephone: 510/346-6200 Facsimile: 510/346-6201 FREDRIC D. WOOCRER STRUMWASSER & WOOCRER 10940 Wilshire Blvd., Suite 2000 Los Angeles, Califomia 90024 Telephone: (310) 576-1233 Facsimile: (310) 319-0156 E-mail: fwoocher@strumwooch.com Attorneys for Real Party In Interest THOMAS A. WILLIS

Attorneys for Real Party In Interest LEGISLATURE OF TRE STATE OF CALIFORNIA

III
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X

BY ELECTRONIC MAIL: By causing true copy(ies) of PDF versions of said document(s) to be sent to the e-mail address of each party listed.
BY FEDERAL EXPRESS MAIL: By placing said documents(s) in a sealed envelope and depositing said envelope, with postage thereon fully prepaid, in the FEDERAL EXPRESS MAIL SERVICE BOX, in Sacramento, California, addressed to said party(ies).

X

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on July 9, 2012 at Sacramento, California.

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NNON DIAZ

,.)

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