No.

0 F

IN THE SUPREME COURT CALIFORNIA
THE TATE OF

CHARLES YOUNG , an individual

Petitioner

GREGORY SCHMIDT
Clerk

California State Senate; and E. DOTSON WILSON , in his capacity as Chief California State Assembly,
, in his capacity as Secretary of the of the

Respondents.

PETITION FOR EXTRAORDINARY RELIEF, INCLUDING WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES

AKIN GUMP STRAUSS HAUER & FELD LLP
WILLIAM A. NORRIS (SBN 25989)

REX S. HEINKE (SBN 66163)
L. RACHEL HEL Y AR (SBN 193080) ORL Y DEGANI (SBN 177741) CHRISTOPHER BLANCHARD (SBN 250729)

JULIAN W. PARK (SBN 263501)
2029 CENTURY PARK EAST , SUITE 2400 Los ANGELES , CALIFORNIA 90067- 3012

TELEPHONE: 310- 229- 1000 FACSIMILE: 310- 229- 1001

ATTORNEYS FOR PETITIONER

CHARLES YOUNG

CERTIFICATE OF INTERESTED ENTITIES OR PARTIES
(Cal. Rules of Court , Rule 8. 208)

Petitioner knows of no entity or person that must be listed under
subsections (1) or (2) of Rule 8. 208. (Cal. Rules of Court , rule 8. 208
(d)(3).

TABLE OF CONTENTS
Pa2;e

PRELIMINARY AND JURISDICTIONAL STATEMENT .......................
THE PARTIES...... ....................
FACTS.. ........ .................

CLAIMS ASSERTED """"""""""""""""""""""""""".............................
RELIEF SOUGHT .........................................................................................

VERIFICATION............................................................................................

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR EXTRAORDINARY RELIEF INCLUDING WRIT OF MANDATE ...........................................................
INTRODUCTION .........................................................................................

The Supermajority Requirements Of Article IV Section 12( d), And Article XIII A , Section 3 , Are Unconstitutional Revisions to the State Constitution. ........... Majority Rule Is Foundational To The Structure And Power Of The Legislative Branch Of Our Government. ...............................................................
The Governor s Veto Authority Is A Foundational Executive Power And An Essential Part of The System of Checks And Balances Established By The State Constitution.................................................................
Article IV , Section 12(d), And Article XIII A Section 3 , Fundamentally Alter California Basic Governmental Structure By Eliminating The Legislature s Foundational Power Of Majority Rule And The Executive

Foundational Veto Authority In The Critical Areas Of Taxation and Budget- Making. ................... .18
II.
Raven

Is Substantively Indistinguishable From This Case: Both Involve Provisions That Abridge

Constitutionally- Vested Powers Of A Branch Of State Government And , Therefore , Are Revisions Of, Not Amendments To , The Constitution........................................
III.

Although It Deals With Article XIII A And Restriction Is Not Relevant
Of Taxing Authority, Amador

Precedent In This Case. ....................................................... ..

CONCLUSION ............................................................................................

CERTIFICATE OF COMPLIANCE ...........................................................

TABLE OF AUTHORITIES
Pa2;e

CASES
Amador Valley Joint Union High Sch. Dist. v. Bd. Of Equalization

(1978) 22 Cal.3d 208 ....................................................................... passim
Brosnahan v. Brown

(1982) 32 Cal.3d 236................................................................................
Calfarm Ins. Coo

v. Deukmejian

(1989) 48 Cal.3d 805 ..............................................................................
Carmel Valley Fire Protection Dist. v. California (2001) 25 Cal.4th 287 ............................................................................. 17
Clinton v. City of New York
(1998) 524 U. S.

417.......................................................................... 16 , 17

County of Sonoma v. Commission on State Mandates

(2000) 84 Cal.App.4th 1264...................................................................
County of Sonoma v. Superior Court (2009) 173 Cal.App.4th 322................................................................... 10
Delaney v. Lowery

(1944) 25 Cal.2d 561. ............................................................................. 20
Gerken v. Fair Political Practices

Com.

(1993) 6 Cal.4th 707 ............................................................................... 25

Green Vo Obledo (1981) 29 Cal.3d 126 ................................................................................ 2
Harbor v. Deukmejian

(1987) 43 Cal.3d 1078 ............................................................................
Hustedt v. Workers Compo
Appeals Bd.

(1981) 30 Cal.3d 329........................................................................ 17
INS v. Chadha
(1983) 462 U. S. 919......................................................................... passim

111

Kasler

Lockyer (2000) 23 Cal.4th 472............................................................................. 17
v. v.

Legislature

(1991) 54 Cal.3d 492...................................................................... passim
Marbury

Madison (1803) 1 Cranch 137 .............................................................................. 12
v. v.

McFadden

Jordan

(1948) 32 Cal.2d 330.............................................................................. 21
Mistretta

United States (1989) 488 U. S. 361.......................................................................... 17
v.

Nogues

Douglass (1857) 7 Cal. 65 ......................................................................................
v.

Process Gas Consumers Group (1983) 463 U.

Consumer Energy Council of America S. 1216.............................................................................. 16
v.

Raven

Deukmejian (1990) 52 Cal.3d 336....................................................................... passim
Vo

Strauss

Horton (2009) 46 Cal.4th 364..................................................................... passim
v. v.

United States

Ballin
1....................................................................................
Tract So co v.

(1892) 144 U. S.
Watchtower Bible

County of Los Angeles

(1947) 30 Cal.2d 426.............................................................................. 20
White

Davis (2003) 30 Cal.4th 528.............................................................................
v.

Wood

Riley (1923) 192 Cal. 293 ................................................................................ 17
v.

STATUTES
Cal. Civ. Code ~ 12.....................................................................................
Cal. Code Civ. Proc. ~ 15............................................................................ 13
~ 1085...................................................................... 1 , 2

........................................................ .....

OTHER AUTHORITIES
S. Const. , art. I , ~ 3..................................................................................
~ 5.. ............ ..................................... ................... ............. 13

~ 7............... ................ ............... ....... ................. ............. 13
art. II

, ~ 2................................................................................. 13

art. V........................................................................................ 13

Cal. Const. , art. IV , ~ 10.............................................................................
~ 12( d) .

.... passim

art. VI , ~ 10...................................................................... passim

art. XIII A , ~ I......................................................................... 26
~ 3.................................................................. passim

Cal. Const. of 1849 , art. IV , ~ 17................................................................

Constitution , Jefferson s Manual and Rules of the House of Representatives
(1797), H. R.
Doc. No. 107- 284

(2003).......................................................

Federalist No. 10 (James Madison) ............................................................ II
Federalist No. 22 (Alexander Hamilton) ........................................ II , 12 , 18
Federalist No. 30 (Alexander Hamilton) .................................................... 19
Federalist No. 33 (Alexander Hamilton) ....................................................
Federalist No. 58 (James Madison) ................................................ 11 , 18 , 19

Mason s Manual of Legislative Procedure (2000 ed. ).......................... 12 , 18
Voter Pamp. , Proposed Stats. and Amends. to Cal. Const. with arguments to voters , Primary Elec. (June 6 , 1978) ...............................

PETITION FOR EXTRAORDINARY RELIEF , INCLUDING WRIT OF MANDATE

PRELIMINARY AND JURISDICTIONAL STATEMENT
By this original verified Petition for Extraordinary Relief
Petitioner Charles Young (Petitioner) seeks a writ of mandate or
other appropriate relief pursuant to California Constitution article
, section 10 , and California Code of Civil Procedure section

1085 , enjoining Secretary of the California State Senate Gregory

Schmidt and Chief Clerk of the California State Assembly E.

Dotson Wilson (collectively, Respondents) from enforcing that
part of the 1933 amendment to the California Constitution

requiring a two- thirds vote of the Legislature to approve the State
budget - codified as article IV , section 12(d), of the Constitution

- and that part of the 1978 amendment to the California
Constitution requiring a two- thirds vote of the Legislature to

increase taxes - codified as article XIII A , section 3 , of the
Constitution.

This Petition is brought on the ground that article IV , section
12(d), and article XIII A , section 3 , are unconstitutional because

they were passed as amendments to the Constitution , but are in
fact revisions

that " make a far reaching change in the

fundamental governmental structure or the foundational power of
its branches as set forth in the Constitution.
(2009) 46 Cal.4th 364
452.
, 444; see also id. (Strauss v.

Horton

at pp. 427 , 430- 445

Petitioner respectfully invokes the original jurisdiction of this
Court pursuant to California Constitution article VI , section 10;

California Code of Civil Procedure Section 1085; and Rule 8.490

of the California Rules of Court. Petitioner invokes that
jurisdiction because the issues presented here are '" of great
public importance and should be resolved promptly. ",
(Legislature v. Eu

(1991) 54 Cal.3d 492 500

, quoting

Raven v.

Deukmejian

(1990) 52 Cal.3d 336 , 340 (exercising original
Brosnahan v.

jurisdiction over whether an amendment to the Constitution was
in fact ,
Brown an unconstitutional revision); see also

(1982) 32 Cal.3d 236 241 (same).)

This Petition presents no questions of fact for the Court to
resolve to issue the relief sought.
THE PARTIES

Petitioner Charles Young is a citizen , taxpayer , and voter of the
State of California , interested in seeing that the California

government carries out its public duty consistent with
Constitutional mandates. (Green v Obledo

(1981) 29 Cal.3d 126

144- 145 (" (W)here the question is one of public right and the

object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special
interest in the result , since it is sufficient that he is interested as a

citizen in having the laws executed and the duty in question
enforced" ), internal quotation and citation omitted.

Respondent Gregory Schmidt (" Schmidt" ) is the Secretary of the

California State Senate. Schmidt is sued in his official capacity.
It is Schmidt's legal duty, among other things , to certify that a

bill has been duly passed by the California Senate , to engross and

enroll bills that have been duly passed by the California Senate

and to present bills that have been passed by the California
Senate and California Assembly in identical form to the

Governor for the Governor s approval or veto.
Respondent E. Dotson Wilson (" Wilson ) is the Chief Clerk of

the California State Assembly. Wilson is sued in his official
capacity. It is Wilson s legal duty, among other things , to certify

that a bill has been duly passed by the California Assembly, to engross and enroll bills that have been duly passed by the

California Assembly, and to present bills that have been passed

by the California Senate and California Assembly in identical
form to the Governor for the Governor s approval or veto.
FACTS

From 1849 to 1933 , the California Constitution treated

appropriations like any other piece of legislation. All legislation
had to be enacted by a simple majority of both Houses of the
Legislature , including the State budget or tax increases.
In 1933 ,

the Legislature placed Proposition 1

on the ballot as a

proposed constitutional amendment. The amendment required a
two- thirds vote by both Houses of the Legislature to approve a

State budget that grew by more than 5 percent , exclusive of
school appropriations. This two- thirds rule is currently article

, section 12(d), of the California Constitution.
10.
In 1978 ,

Proposition 13 was placed on the ballot by an initiative

petition as another proposed amendment to the Constitution.
1 Proposition 16 ,

which passed as a further constitutional amendment in

1962 , removed the 5 percent limitation of article IV , section 12(d), but otherwise did not alter the two- thirds requirement for approving the

State budget.

Proposition 13 required ,

inter alia , a two- thirds majority of both

Houses of the Legislature to raise taxes. This two- thirds rule is
currently article XIII A , section 3 , of the California Constitution.
CLAIMS ASSERTED
11.

Article IV , section 12(d), and article XIII A , section 3 , constitute

revisions of, rather than amendments to , the California
Constitution because they " involver) a change in the basic plan

of California government , i.e. , a change in its fundamental
structure or the foundational powers of its branches.

(Strauss

supra 46 Cal.4th at pp. 438 , 441
pp. 508- 509;
see also

, quoting

, supra 54 Cal.3d at

Strauss, supra 46 Cal.4th at pp. 427 , 430-

445 , 452.

Specifically, these supermajority provisions deprive

the Legislature of its foundational constitutional power to adopt a
budget and increase taxes by a simple majority of each House
subject only to the Governor s exercise of his/her veto power.

They also erode the Governor s foundational constitutional

power to either approve or veto bills containing budget and tax
increase measures. In -effect , these provisions vest in a minority
of either

House the power to defeat budget and tax bills duly

approved by a majority of both Houses and minimize the

Governor s role in the process by largely undercutting his/her
power to veto or not veto such bills , thus changing the basic

balance of power structure of California government set forth in
the California Constitution.

12.

Because article IV , section 12(d), and article XIII A , section 3

were passed as amendments to the California Constitution but
are , in fact , revisions , they are unconstitutional. (See

Raven

Cal.3d at pp. 349- 355 (striking down revision of Constitution

improperly enacted as amendment).
13.

Petitioner , a citizen , taxpayer , and voter of California , as well as
the Legislature , the Governor , and others , will suffer irreparable

injury and damage unless this Court intervenes and directs

Respondents to desist from enforcing article IV , section 12(d),
and article XIII A , section 3 , and to desist from directing others
to enforce these supermajority rules.
14.

Petitioner believes that there is no requirement in this

circumstance to plead demand and refusal. Without prejudice to
that position , Petitioner alleges that any demand to Respondents

to act or refrain from taking action as described in Paragraph I in
the Relief Sought below would have been futile if made , and that

only a court order will cause Respondents to refrain from taking
those actions.

RELIEF SOUGHT

Petitioner requests the following relief:

That this Court immediately issue a writ of mandate or other
appropriate relief directing Respondents:

a.

To desist from any act enforcing article IV , section 12(d),
and article XIII A , section 3 , or directing any other person

or entity to enforce or give effect to these provisions;
Or in the alternative , to show cause before this Court at a

specified time and place why Respondents have not done
so;

That this Court issue an order that article IV , section 12(d), and
article XIII A , section 3 , are null and void in their entirety

because they are revisions of the Constitution that were placed on
the ballot and passed as amendments;

That , upon Respondents ' return to the alternative writ , a hearing

be held before this Court at the earliest practicable time so that
the issues involved in this Petition may be adjudicated promptly,
pursuant to an expedited briefing and hearing schedule;
That Petitioners be awarded their attorneys ' fees and costs of
suit; and
F or such other and further relief as is just and equitable.

Dated: July 9 2009

AKIN GUMP STRAUSS HAUER & FELD LLP William A. Norris Rex S. Heinke L. Rachel Helyar Orly Degani
Christopher Blanchard

Julian W. Park

By

?fY.A.~

O.

William A. Norris

J?~

ATTORNEYS FOR PETITIONER
CHARLES YOUNG

VERIFICATION

, William A. Norris , declare:
I am counsel for the Petitioner in the above-entitled action. I have

read the foregoing Petition for Extraordinary Relief, Including Writ of
Mandate , and know its contents. The matters stated in this Petition are true

of my own personal knowledge, except where such matters are stated on

information or belief, and as to those matters , I believe them to be true.
verify this Petition in place of Petitioner because Petitioner is currently
absent from Los Angeles County, where my office is located.

I declare under penalty of perjury that the foregoing is true and
correct under the laws of the State of California, and that this verification
was executed in Los Angeles on July 9 2009.

?r~QI/7~
William A. Norris

'"

, "'

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR EXTRAORDINARY RELIEF , INCLUDING MANDATE
WRIT OF

INTRODUCTION
Mirroring the United States Constitution , the California Constitution
vests the State

s sovereign power to govern in three branches: the

legislative power in the State Legislature , the executive power in the

Governor , and the judicial power in the State courts. The California
Constitution also distinguishes between a revision and an amendment of its

provisions , setting forth different procedures for accomplishing each.
Several times , this Court has decided whether a particular measure passed

as an amendment to the Constitution is , in fact , an unconstitutional revision. This Petition presents the same question.
Recently, in Strauss v. Horton

(2009) 46 Cal.4th 364 , this Court

carefully reviewed the revision/amendment dichotomy and all the Court'

prior decisions analyzing the distinction between these two methods of
altering the California Constitution. (Id.

at pp. 412- 440. )

After analyzing

the prior cases , the Court explained that a change to the Constitution is a

revision , not merely an amendment , if it amounts to "' a change in the basic
plan of the California government '" that is
branches.
a change in (the)

fundamental (governmental) structure or the foundational powers of its
(Id.

at p. 438

, quoting

Legislature v. Eu

(1991) 54 Cal.3d 492

508- 509 , emphasis omitted; see also

Strauss, supra 46 Cal.4th at pp. 427

430- 445 452.

Article IV , section 12(d) and article XIII A , section 3 , of the
California Constitution require two- thirds of each House of the Legislature
- a supermajority, as

opposed to the usual simple majority - to pass every

State budget or tax increase. They were expressly adopted as amendments

to the Constitution , not as revisions. Therefore , the question here is

whether the supermajority requirements of these provisions constitute "' change in (the) fundamental (governmental) structure or the foundational
powers of its branches.
(Strauss , supra 46 Cal.4th at p. 438 , quoting

Legislature v. Eu, supra 54 Cal.3d at pp. 508- 509 , emphasis omitted.
They do. As such ,

they are unconstitutional revisions.

Article IV , section 12(d) and article XIII A , section 3 , alter the

fundamental structure and the foundational power of both the legislative

and executive branches of California s government. As to the legislative

branch , they transfer the power of the majority of the Legislature to a
minority of one- third plus one of either House , giving such a minority the

ability to block any budget and any tax increase bill despite the fact that the

bill has the support of a majority of both Houses. As to the executive
branch , these supermajority provisions render the Governor s veto power
virtually meaningless when it comes to bills to adopt budgets or increase
taxes. With these provisions

in place , a minority of either House of the

Legislature can block any such bill that has been approved by a majority,

but not a supermajority, of both Houses from ever reaching the Governor
desk unless the bill has received the required two- thirds vote of both
Houses , which , of course , is the number of votes necessary to override a

veto. Thus , the supermajority provisions substantially diminish the power
of the executive branch to participate in the decision-making process
concerning the State budget and tax increases.

It is difficult to imagine more fundamental changes to the

foundational power and structure of the legislative and executive branches.

The supermajority requirements of article IV , section 12(d) and article XIII
, section 3 , obliterate constitutionally-vested powers of coordinate

branches of government and , thus , shift the balance of power between those
branches , altering the Constitution s carefully-conceived system of checks
and balances. Indeed , these provisions are not meaningfully different , and

are at least as " devastating " to the preexisting governmental scheme , as the
purported amendment which this Court determined was a revision to the
Constitution in

Raven , supra 52 Cal.3d at p. 352. That purported

amendment required California courts to defer to the United States
Supreme Court' s interpretations of the federal Constitution in construing

certain rights of criminal defendants set forth in the California Constitution.
(Id.

at pp. 342- 346, 350. )

Just as the

purported amendment in

Raven

altered the fundamental structure of government by " vest(ing) a critical

portion of state judicial power

" in the federal courts

(ido

at p. 355), article

, section 12(d) and article XIII A , section 3 , alter the fundamental

structure of government by vesting a critical portion of the State legislative
power in a minority of either House of the Legislature , and by eroding the
executive s veto power over budget and tax increase legislation. As such
article IV , section 12(d), and article XIII A , section 3 , are unconstitutional

revisions masquerading as amendments.

THE SUPERMAJORITY REQUIREMENTS OF ARTICLE IV SECTION 12(d), AND ARTICLE XIII A , SECTION 3 , ARE UNCONSTITUTIONAL REVISIONS TO THE STATE CONSTITUTION.

Majority Rule Is Foundational To The Structure And
Power Of The Legislative Branch Of Our Government.

Majority rule is foundational to the structure and power of the legislative branch under both the federal and California Constitutions.

The Constitution s prescription" for legislation in both documents is
passage by a majority of both Houses.
919
958; see also (INS v. Chadha

(1983) 462 U.
(2009) 173

County of Sonoma v. Superior Court

Cal.App.4th 322 , 348.

Majority rule is such a fundamental principle of our republican form of democracy that its roots are in the Federalist Papers and other

).)

foundational documents. (See , e. , The Federalist No. 10 (James Madison)
If a faction consists of less than a majority, relief is supplied by the

republican principle , which enables the majority to defeat its sinister views

by regular vote ); The Federalist No. 22 (Alexander Hamilton) (" The

fundamental maxim of republican government. .. requires that the sense of
the majority should prevail" ); Constitution , Jefferson s Manual and Rules
of the House of Representatives (1797), H. R.
Doc. No. 107- 284

(2003) at p.

266 (" the voice of the majority decides , for the lex majoris partis is the law

of all councils , elections , &c. , where not otherwise expressly provided.
see also United States v. Ballin

(1892) 144 U. S. 1

6 (" The general rule of

all parliamentary bodies is that , when a quorum is present , the act of a

majority of the quorum is the act of the body. This has been the rule for all
time , except so far as in a given case the terms of the organic act under

which the body is assembled have prescribed specific limitations.

As the authors of the Federalist Papers recognized in defending the

concept of majority rule in the federal Constitution, supermajority instead of simple majority requirements " reverse()" the " fundamental principle of

free government" by transferring power to a minority. (The Federalist No.
58 (James Madison). )

Responding to the argument that something more

than a majority should be required for a legislature to exercise its power
J ames Madison wrote that:

In all cases where justice or the general good might require new laws

to be passed , or active measures to be pursued , the fundamental
principle of free government would be reversed.

It would be no

longer the majority that would rule: the power would be transferred
to the minority.

Were the defensive privilege limited to particular

cases , an interested minority might take advantage of it to screen

themselves from equitable sacrifices to the general weal , or , in
particular emergencies , to extort unreasonable indulgences.

(Ibid. emphasis added.

In a similar vein , Alexander Hamilton warned that supermajority
requirements paralyze the government' s ability to legislate effectively:

To give a minority a negative upon the majority, which is always the
case where more than a majority is requisite to the decision , is ... to
subject the sense of the greater number to that of the lesser. ... Its

real operation is to embarrass the administration , to destroy the
energy of the government , and to substitute the pleasure , caprice , or

artifices of an insignificant , turbulent , or corrupt junto , to the regular
deliberations and decisions of a respectable majority.

(The Federalist No. 22 (Alexander Hamilton).

The admonitions of Madison and Hamilton are echoed in Mason Manual of Legislative Procedure , which has been adopted by the California
Legislature as the definitive authority on legislative procedure. (Office of

the Chief Clerk , California State Assembly, Legislative Procedure 4 (200 I),
available at
http://www. assembly. ca. gov/ clerkiBILLSLEGISLA TURE/LegProcedPartl
pdf (last visited June 23 2009). )
That

treatise recognizes that even the

Legislature has no power to impose a supermajority requirement to pass

legislation , because " (t)o require a two- thirds

vote... to take

any action

would be to give to any number more than one-third of the members the

power to defeat the action and amount to a delegation of the powers of the
body to a minority. " (Mason s Manual of Legislative Procedure (2000 ed.
353.

Although not explicitly set forth in the Constitution , the power to

legislate by a simple majority is as embedded in the power vested in the legislative branch of government as the power to interpret the Constitution

is embedded in the power vested in the judicial branch. As far back as
Marbury v. Madison

(1803) I Cranch 137 , the United States Supreme

Court held that , based on precedent and history, interpreting and applying

the Constitution is " the very essence of judicial power " even though that
power is not explicitly stated in the Constitution. (Id.

at p. 176; see also

Civ. Code , ~ 12 (" Words giving a joint authority to three or more public

officers or other persons are construed as giving such authority to a

majority of them , unless it is otherwise expressed in the act giving the
authority); Code Civ. Proc. , ~ 15 (same).) Likewise
, in

Raven this Court

held that the judicial power to interpret the State Constitution, is so
fundamental to the role of the judiciary that it can be altered only by

revision

, and not by mere amendment.

(Raven , supra 52 Cal.3d at p. 355;
(1857) 7 Cal. 65 ,

see also Nogues v. Douglass

70 (" The judiciary, from the

very nature of its powers and the means given it by the Constitution , must
possess the right to construe the Constitution in the last resort. . . .

Whenever the Framers of the United States Constitution wanted , in

carefully-considered , limited circumstances , to require a supermajority vote
for particular legislative actions , they did so explicitly, as an exception to

the general rule of majority rule. Thus , a two- thirds vote of both Houses of
Congress is necessary to propose a constitutional amendment and then a
three- fourths vote of the state legislatures is required for its final adoption

(art. V); a two- thirds vote of Congress is necessary to override a
presidential veto (art. I , ~ 7 , cl. 2); a two- thirds vote of the Senate is

necessary to approve a treaty (art. II , ~ 2 , cl. 2); a two- thirds vote of the
Senate is required to convict after impeachment (art. I , ~ 3 , cl. 6); and a
two- thirds vote by the House is required to expel a member (art. I , ~ 5 , cl.
2). Likewise ,

supermajority requirements were a narrow exception to

majority rule in the original California Constitution. Indeed, it allowed for
only one instance when a supermajority vote was required: to override the

Governor s veto of a bill passed by a majority of both Houses. (Cal. Const.
of 1849 ,

art. IV , ~ 17.

In sum , the legislative power to legislate by majority vote , like the

judicial power to interpret the Constitution , has deep roots in precedent and
history. The record

is clear: the Framers of both the federal and California

Constitutions so clearly understood that the Legislature would act by

majority rule that they saw no need to make this explicit in the Constitution
while any supermajority requirement was an exception that had to be made
explicitly, as was done in article IV , section 17 of the California

Constitution , requiring a two- thirds majority to overcome a gubernatorial

veto. Thus , just as the judicial power to interpret and apply the State
Constitution can be changed only by Constitutional revision , and not by

amendment , alteration of the legislative power to pass laws by majority
vote requires revision of the Constitution , and cannot be accomplished by
mere amendment.

The Governor s Veto Authority Is A Foundational
Executive Power And An Essential Part of The System of

Checks And Balances Established By The State Constitution.
Similar to the judicial power to interpret and apply the Constitution
and the legislative power to pass laws by majority rule, the Governor s veto

authority is a foundational executive power and a critical component of the
system of checks and balances established by the California Constitution. Like the federal Constitution, the California Constitution includes a

Presentment Clause that "prescribe(s) and definers) the respective functions
of the Congress and of the Executive in the legislative process.

(Chadha

supra

462 U. S.

at pp. 945- 946 (setting forth the federal Constitution
California

Bicameral and Presentment Clauses , art. I , ~ 7 , cls. 2- 3).
Presentment Clause provides that:

Each bill passed by the Legislature shall be presented to the
Governor. It becomes a statute ifit
is

signed by the Governor. The

Governor may veto it by returning it with any objections to the

,"

) "

house of origin , which shall enter the objections in the journal and

proceed to reconsider it. If each house then passes the bill by rollcall
vote entered in the journal , two- thirds of the membership concurring,
it becomes a statute.
(Cal. Const. , art. IV , ~ 10.
As the United States Supreme Court explained in

Chadha the

Framers were acutely conscious " that the Presentment Clause , along with

the bicameral requirement would serve essential constitutional functions
(462 U. S. at p. 951) by allowing the passage oflegislation only after it has

proceeded through " a step- by-step, deliberate and deliberative process (id. at p. 959) that was " at p.
finely wrought and exhaustively considered" (ido

951). That process includes " passage

by a majority of both Houses and

presentment to the (executive), " who may approve the bill , or veto and

return it with his objections , thereby requiring a two- thirds majority of both
Houses to overcome the veto. (Id.

at p. 958 , footnote omitted.

The Presentment Clauses of both the federal and California

Constitutions thus establish a system of checks and balances whereby the

Legislature and the Executive deliberate with each other and moderate each
other s powers. " The bicameral requirement , the Presentment Clauses , the
President' s veto and Congress ' power to override a veto were intended to

erect enduring checks on each Branch and to protect the people from the
improvident exercise of power by mandating certain prescribed steps.

(Chadha , supra

492 U. S.

at p. 957.

To preserve those checks , and

maintain the separation of powers , the carefully defined limits on the power
of each Branch must not be eroded.
(Id.

at p. 958. ) Indeed , the

requirements of presentment and the executive veto were considered "
imperative " that the " draftsmen took special pains to assure that these
requirements could not be circumvented.
(Id.

at p. 947.

).)

The executive veto is a critical and essential part of the careful

system of checks and balances established by the federal and California
Constitutions.

(Harbor vo

Deukmejian

(1987) 43 Cal.3d 1078 ,

1085- 1086

In the United States , the veto has evolved as an integral part of the system
of checks and balances. Woodrow Wilson viewed the power as the most

formidable prerogative of the presidency. One historian has commented
that , while the strength of Congress consists of its authority to enact

legislation , the President's strength consists of his right to veto it"
footnote and citations omitted. ) By granting the Executive a veto power

the Framers ensured that the Executive would play an indispensable role in
the process of making laws , serving as a check on and balance to the
legislative power to pass laws by majority vote.

(Chadha, supra 462 U.

at p. 947 (" It is beyond doubt that lawmaking was a power to be shared by
both Houses and the President " whose role assures that a "' national'
perspective is grafted on the legislative process.
Given the integral role of the executive veto in this system of checks
and balances , the
Chadha

court held that a provision whereby one House of

Congress could override an executive order was unconstitutional because it
deprived the executive branch of its full and proper authority under the
Presentment Clause.

(Chadha, supra 462 U. S. at pp. 951- 959l More
Clinton v. City of New York

recently, in

(1998) 524 U. S.

417 , the United

States Supreme Court ruled that the congressional delegation of a line- item

veto power to the President was unconstitutional because it altered the
fundamental framework of the Presentment Clause , which authorizes the

President to object to whole bills

, not parts of bills.

(Id.

at pp. 439- 440

Chadha the Supreme Court summarily affirmed a D. Circuit decision striking down a two House legislative override of
executive action. Council of America

2 After

(Process Gas Consumers Group v. Consumer Energy (1983) 463 U. S. 1216.

);

""'

445-

446;

see id.

at pp. 447- 448 (declining to pass on the wisdom of the

policy behind the line item veto; the only issue was whether the law was in
accord with the "' finely wrought' procedure commanded by the

Constitution

), quoting

Chadha, supra 462 U. S.

at p. 951.) 3

Similarly, this Court has held that the Legislature may not make
appropriations " in

such way as to circumvent the veto power of the
(1923) 192 Cal. 293
, 306; see also

Governor.
United States

(Wood v. Riley

Mistretta
the

(1989) 488 U. S. 361 , 383 (provision oflaw that " prevents

Executive Branch from accomplishing its constitutionally assigned
functions " is an unconstitutional subversion of the separation of powers),
citation and quotations omitted;

Hustedt v. Workers Compo Appeals Bd.

(1981) 30 Cal.3d 329 338 (Legislature violates separation of powers

doctrine when it " defeat( s) or materially impair( s) the exercise of (another
branch' s) functions
Carmel Valley Fire Protection Dist. V. California

(2001) 25 Cal.4th 287 297 (California courts ""' have not hesitated to strike

down provisions of law that either accrete to a single Branch powers more

appropriately diffused among separate Branches or that undermine the
authority and independence of one or another coordinate Branch.
quoting Kasler v. Lockyer

(2000) 23 Cal.4th 472 493.

, the Governor of California has authority under the State Constitution to exercise a lineitem veto power over appropriations. The Governor was given this authority through a change to the Constitution in 1879. Conferring lineitem veto authority on the Governor did not merely amend the Constitution it was a revision that restructured the balance of power between the legislative and executive branches. This change to the State Constitution was accomplished properly, however. It was added through a constitutional convention. (Cal. Const. of 1879 , art. IV , ~ 16. ) By contrast , the United States Congress sought to give the President line- item veto authority through simple legislation , a procedure that was held unconstitutional in Clinton V. New York.

3 Unlike the President under the federal Constitution

,"

Thus , both the United States Supreme Court and this Court have
recognized that the Executive s power to veto or not veto legislation is a

foundational power critical to the basic structure of our government and to the system of checks and balances on which that government is based.

Article IV , Section 12(d), And Article XIII A , Section 3 Fundamentally Alter California s Basic Governmental Structure By Eliminating The Legislature s Foundational Power Of Majority Rule and Eroding The Executive Foundational Veto Authority In The Critical Areas Of Taxation and Budget- Making.
As discussed above , our lawmaking process rests on a fundamental

principle of majority rule and a careful balancing of power between the

Legislature and the Executive. The supermajority provisions of article IV
section 12(d), and article XIII A , section 3 , turn that " finely wrought"
system

(Chadha, supra

462 U. S.

at p. 951) on its head by stripping the

simple majority of the power to pass critical budgetary and tax legislation

and by diluting the Governor s veto authority over such legislation.
The supermaj ority provisions of article IV ,
section 12(

d), and article

XIII A , section 3 , alter the basic framework of California government by

taking legislative power from the simple majority of the Legislature and

transferring it to a minority of anyone- third plus one member of either the
California Assembly or California Senate. (The Federalist No. 58 (James
Madison) (With a supermajority requirement the fundamental principle of
free government would be reversed. It would be no longer the majority that

would rule: the power would be transferred to the minority ), emphasis
added; The Federalist No. 22 (Alexander Hamilton) ("To give a minority a

negative upon the majority, which is always the case where more than a majority is requisite to the decision , is ... to subject the sense of the greater

number to that of the lesser ); Mason s Manual of Legislative Procedure

supra at p. 353 (" To require a two- thirds

vote... to take

any action would

be to give to any number more than one- third of the members the power to

defeat the action and amount to a delegation of the powers of the body to a
minority.
section 3 ,

) Because under

article IV , section 12(d), and article XIII A

a two- thirds majority is required to pass any budget or tax

increase , minority factions that can cling to just over 33% of the votes in
either

House are empowered to block such essential legislation , thus

paralyzing the legislative process , or to extort " indulgences " in exchange

for votes. (The Federalist Noo

58 (James Madison).

This transfer of power from the majority to the minority

substantially alters the fundamental power of the Legislature with respect to two of the most critical functions of any legislative body budget and

.taxation. It has long been recognized that the power to tax and to allocate
monies is at the heart of a legislature s constitutional authority. (See , e.

The Federalist No. 30 (Alexander Hamilton) (" Money is , with propriety,
considered as the vital principle of the body politic; as that which sustains

its life and motion , and enables it to perform its most essential functions.

complete power , therefore , to procure a regular and adequate supply of it
as far as the resources of the community will permit, may be regarded as an
indispensable ingredient in every constitution. ); The Federalist No. 33

(Alexander Hamilton) (" the power to make laws to collect revenues is a

legislative power

) In defending the Congress ' power to raise taxes under

the proposed United States Constitution , Alexander Hamilton sagely
predicted that in times of crisis substantial restrictions on a legislature

4 Ironically, though the supermajority provisions of article IV

section 12(d), and article XIII A , section 3 , were clearly intended to limit taxes , they may serve as a disincentive to tax reduction. Knowing that a two- thirds vote will be required to increase taxes in the future , legislators may be hesitant to lower taxes for fear they may be unable to raise needed revenue at a later date.

) " ).)

ability to raise revenues would eventually doom the government to failure.
(The Federalist No. 30 (Alexander Hamilton).
The importance of the Legislature s budget and taxation powers are

likewise recognized under California law , and , for that reason , have long

been carefully guarded by this Court. More than half-a-century ago , this
Court observed: " (T)he power of taxation for revenue purposes is probably
the most vital and essential attribute of the government.

Without such

power it cannot function.
Los Angeles

" (Watchtower Bible

Tract Soc. v. County of
Generally the

(1947) 30 Cal.2d 426 429 , emphasis added.

Legislature is supreme in the field of taxation , and the provisions on

taxation in the state Constitution are a limitation on the power of the
Legislature rather than a grant to it." (Delaney v. Lowery

(1944) 25 Ca1.2d

561 , 568. )

Reinforcing

this theme , this Court has described the
fundamental."

Legislature s power to enact a budget as "
(2003) 30 Cal.4th 528
State Mandates , 558;

(White Vo Davis

see also County of Sonoma v. Commission on

(2000) 84 Cal.App.4th 1264 , 1280- 1281 (describing the

power of the Legislature as " supreme " in tax matters and describing the
Legislature s powers regarding the budget as " considerable

The minority empowerment of the supermajority provisions of
article IV , section 12(d), and article XIII A , section 3 , also comes at the

expense of the Governor , whose role in the lawmaking process in the key

areas of taxation and budget-making is substantially diminished. Before
the two-thirds requirements for passing a budget or raising taxes were

adopted , the Governor could either approve such bills that had been passed
by majority of the Legislature or veto them and require a two-thirds vote of
the Legislature to override the veto. Thus , the Governor had significant

power over such bills. Now that the two- thirds requirements have been
passed , the Governor no longer has the option to either approve or veto any
budget or tax increase bill that has the support of a majority, but not a

supermajority, of the Legislature. Those bills never even reach the
Governor s desk , because a minority one- third plus one of either the Senate
or Assembly can block them from ever getting through the Legislature. The only budget and tax-increase bills that now reach the Governor are those that have received a two- thirds vote of both Houses. But that , of
course, is the number of votes necessary to override any gubernatorial veto.
Thus , while the Governor retains a technical veto power over budget and
tax- increase bills passed by two- thirds of the Legislature , that power is

virtually meaningless. By crippling the executive veto power , the
supermajority provisions of article IV, section 12(d), and article XIII A
section 3 ,

considerably weaken the power of the executive brancl). to

participate in the decision-making process concerning the State budget and
tax increases.

The supermajority provisions thus ineluctably alter the careful

system of separation of powers and checks and balances mandated by the
Constitution. These provisions

shift control over whether budgetary and

tax increase measures will pass to the hands of a minority that is " beyond

the system of checks and balances which heretofore has characterized our
governmental plan.
(McFadden v. Jordan

(1948) 32 Cal.2d 330 348.

They prevent the executive and legislative branches " from accomplishing
(their) constitutionally assigned functions " and so are an unconstitutional
subversion of the separation of powers principle.

(Mistretta, supra 488

S. at p. 383 (executive branch), citation and quotations omitted; see

Hustedt, supra 30 Cal.3d at p. 338 (Legislature violates separation of
powers doctrine when it " defeat ( s) or materially impair( s) the exercise of
(another branch' s) functions

In short , when it comes to the critical areas of budget and taxation article IV , section 12(d), and article XIII A , section 3 , have eviscerated the

California Constitution and the vital powers it provides to the legislative

majority and the Governor. As this Court held in

Raven

such a

fundamental change can be accomplished only through constitutional

revision

, not amendment.

(Raven , supra 52 Cal.3d at pp. 352- 355

(initiative that robbed the judicial branch of power granted by the

California Constitution effected a revision , not an amendment , to the
Constitution). )
The two- thirds

provisions are invalid revisions that should

be stricken from the Constitution.

II.

SUBSTANTIVELY INDISTINGUISHABLE FROM THIS CASE: BOTH INVOLVE PROVISIONS THAT ABRIDGE CONSTITUTIONALLY-VESTED POWERS OF A BRANCH OF STATE GOVERNMENT AND , THEREFORE ARE REVISIONS OF , NOT AMENDMENTS TO , THE CONSTITUTION.
RA VENIS

This Court' s
meaningful way from this case. In

decision in

Raven

is indistinguishable in any
Raven this Court held that a proposed

amendment to the Constitution , Proposition 115 , was an unconstitutional

revision due to the measure s " far reaching changes in the nature of our
basic governmental plan.

(Raven , supra 52 Cal.3d at pp. 354- 355. ) The

supermajority provisions of article IV, section 12(d), and article XIII A
section 3 ,

are no less far reaching than Proposition 115 in their effect on the

of filibustering lends no support to the twothirds requirements of article IV , section 12(d), and article XIII A , section 3. There are fundamental differences between the cloture rule , which requires a three- fifths vote of the United States Senate to override a filibuster , and the supermajority provisions at issue here. First , the cloture rule is a self- imposed , procedural provision allowed under the federal Constitution (U. S. Const. , art. I , ~ 5 , cl. 2 (" Each House may determine the Rules of its Proceedings )), with incidental substantive effects , while the supermajority provisions are revisions of the California Constitution imposed by the electorate on the government. Further , the Senate s cloture a bill , only to end Senate
rule does not require a supermajority vote to pass

5 The federal practice

debate. Finally, the rule does not apply in the House of Representatives. In

short , historical acceptance of the Senate s cloture rule does not provide support for the two- thirds rules in question here.

'"

fundamental structure of California government and the foundational

powers of its legislative and executive branches. Just like Proposition 115
they abridge constitutionally-vested powers of coordinate branches of state
government. Thus , under

Raven these supermajority provisions are

impermissible revisions of the Constitution.

Proposition 115 required California courts to defer to the United
States Supreme Court' s interpretations of the federal Constitution in

construing certain aspects of the California Constitution - including
criminal defendants ' rights to due process , equal protection , assistance of
counsel , and avoidance of cruel and unusual punishment - notwithstanding
the provision of the California Constitution stating that "' (r)ights

guaranteed by this Constitution are not dependent on those guaranteed by
the United States Constitution.
(Raven , supra 52 Ca1.3d at pp. 342- 346
Far

350 , quoting Cal. Const. , art. I , ~ 24. )

from merely amending the

California Constitution , this Court held , Proposition 115 structurally

transformed it: the measure " vest( ed) a critical portion of state judicial
power" in the federal courts and " substantially alter ( ed) the substance and
integrity of the state Constitution as a document of independent force and
effect." (Id.

at pp. 352 355. ) Noting that in an earlier case Amador Valley
Of Equalization

Joint Union High Sch. Dist. Vo Bdo

(1978) 22 Cal.3d 208

the Court had observed that a hypothetical "' enactment which purported to

vest all judicial power in the Legislature would amount to a revision '" of

the Constitution

, the

Raven

Court reasoned that " Proposition

115

contemplates a similar qualitative change " because " (i)n essence and effect
(it) would vest all judicial

interpretive power as to fundamental criminal

defense rights , in the United States Supreme Court.
Cal.3d at p. 352
, quoting

(Raven , supra

Amador, supra 22 Cal.3d at p. 223 , internal
Raven

quotation omitted. )

The

Court concluded that " (fJrom a qualitative

standpoint , the effect of Proposition 115 is devastating" to our preexisting
governmental plan.

(Raven, supra 52 Cal.3d at p. 352.

As discussed above , the two- thirds requirements of article IV
section 12(d), and article XIII A , section 3 , vest a critical portion of both

the State legislative power and the State executive power in a minority of
either the State Senate or the State Assembly, with respect to the vital areas

of budgeting and taxation. From a qualitative standpoint, these
supermajority provisions "
closely resemble()

Amador hypothetical

provision vesting all judicial power in the Legislature , a provision (this
Court) deemed would achieve a constitutional revision.
Ca1.3d at p. 355. )
the "

(Raven , supra

Like Proposition 115 ,

they have a far-reaching impact on

basic governmental plan or framework embodied in the preexisting

provisions of the California Constitution " and thus effect change beyond
the scope of a constitutional amendment.

(Strauss , supra 46 Ca1.4th at p.

441 , emphasis omitted. ) And like Proposition 115 , article IV , section

12(d), and article XIII A , section 3 , effect a change so profound and

devastating " to the structure of our government and the foundational

powers of two of its branches that they constitute revisions of the

Constitution

, not mere amendments.

(Raven , supra 52 Cal.3d at p. 352.

III.

ALTHOUGH IT DEALS WITH ARTICLE XIII A AND RESTRICTION OF TAXING AUTHORITY NOT RELEVANT PRECEDENT IN THIS CASE.
AMADOR In

Amador this Court addressed another direct challenge to Article
not

XIII A

, determined that article XIII A is

like the hypothetical

enactment vesting all judicial power in the Legislature , and held that

article XIII A fairly may be deemed a constitutional amendment , not a
revision.
In

(Amador, supra 22 Cal.3d at p. 228.

Amador however , the petitioners did not challenge and this Court

did not address section 3 of article XIII A , which requires two- thirds of the

,"

,"

,"

State Legislature to pass any tax increase , and is the only portion of Article
III A at issue here.

(Amador, supra 22 Cal.3d at p. 220 (advising that the

Court' s opinion is limited to the specific constitutional issues resolved; " our

summary description and interpretation of the article and of the

implementing legislation and regulations do not preclude subsequent
challenges to the specific meaning or validity of those enactments.

Rather

, the petitioners in

Amador

challenged sections I and 2 of

article XIII A , which grant power to the Legislature to allocate revenues
6 Section 3 may be stricken as an unconstitutional revision without

affecting the remaining provisions of article XIII A , which this Court Amador because section 3 is Raven , supra 52 Cal.3d at pp. 355- 356 (severing invalid revision of Constitution from valid portions of initiative measure properly passed as constitutional amendment); Legislature v. Eu , supra 54 Cal.3d at pp. 534Calfarm Ins. Co.
determined are constitutional amendments in severable from those other provisions. (See 535 (same);

vo Deukmejian

(1989) 48 Ca1.3d 805

821 (same).) As a preliminary matter

article XIII A includes a severability clause (section 6), which , while not conclusive normally calls for sustaining the valid part of the enactment." (Gerken v. Fair Political Practices (1993) 6 Cal.4th 707 , 716 Calfarm , supra Raven , supra 52 Ca1.3d at pp. 355- 356 (giving effect to severance clause). ) Moreover , section 3 easily meets the three criteria for severability prescribed by case law. (See Gerken , supra 6 Cal.4th at p. 716. ) First , the provision is mechanically and grammatically severable: It constitutes a distinct and separate provision of article XIII A which can be removed without affecting the wording of any other provision. (Raven , supra 52 Cal.3d at p. 356. ) Second , the provision is functionally severable: The remaining provisions , which deal with property taxes and the taxation power of local governments can operate entirely independently of the invalid restriction. (Legislature , supra 54 Cal.3d at p. 535. ) Third , the remainder of the initiative would likely have been adopted by the electorate had they foreseen the invalidity (Raven , supra 52 Cal.3d at p. 356. The voters who enacted Proposition 13 would " presumably prefer" the property tax relief accorded under the balance of the initiative "to the system that existed before the initiative was enacted. (Calfarm , supra Cal.3d at p. 821. ) There is no reason to believe that the legislative supermajority provision " was so critical to the enactment of Proposition (13) that the measure would not have been enacted in its absence. (Ibid.
Com. quoting 48 Ca1.3d at p. 821; see of the challenged portion of section 3.

, ~

from real property taxation among various local agencies.

(Amador, supra

22 Cal.3d at p. 220. )

The

petitioners argued that these provisions interfere

with home rule , or the ability of local government to control and finance
local affairs without undue interference by the Legislature. (Id.

at p. 224-

225. ) This Court rejected that argument , finding that the relevant
provisions " are

no more threatening to home rule than () preexisting

constitutional limitations "
disturb our basic governmental plan.

on local taxing authority, and , therefore , do not
(Id.

at pp. 225- 227.

Thus Amador principal holding was that article XIII A' s transfer

to the State Legislature of the authority of local government districts to apportion revenues from taxes on real property within their jurisdictions
, its expansion of the Legislature s control of the power to distribute real

property tax revenues at the expense of subordinate local governments

was a permissible amendment to the Constitution, not a revision. That
holding had nothing to do with article XIII A' s requirement in section 3
that two- thirds of the State Legislature approve any kind of tax increase , or

with the effect of that supermajority requirement on the power to govern

7 Article XIII A

collected by the counties and apportioned

, section I , provides that property taxes shall be according to law to the districts

Amador

within the counties. " (Cat Const. , art. XIII A emphasis added. ) At the time this provision was enacted , there was no state law which provided for distribution of property tax revenues. (Voter Pamp. , Proposed Stats. and Amends. to Cal. Const. with arguments to voters , Primary Elec. (June , 1978), analysis by Legislative Analyst.) Subsequently, the Legislature passed implementing legislation setting the formulae pursuant to which county auditors must allocate property tax revenues to various agencies (Amador, supra 22 Cal.3d at pp. 226- 227. ) The Court found that " (i)n general (these formulae) aim at allocating pro rata basis without imposing any condition whatever regarding their ultimate use (Id.
within their boundaries. these funds on a " and thus do not interfere with home rule.

at p. 227.

distributed by the Constitution to any of the three coordinate branches of
the State government.
The only other holding of consequence in Amador

involved section

4 of article XIII A , which restricts local government authority to impose
special taxes " by requiring that such taxes be approved by two- thirds of
the local voters. The
petitioners in Amador

argued that this provision

result(s) in a change from a ' republican ' form of government (i.

lawmaking by elected representatives) to a ' democratic ' governmental plan
(i. , lawmaking directly by the people).

(Amador, supra 22 Cal.3d at p.

227. )

Not
The

surprisingly, this Court rejected that argument.
Amador

Court reasoned that the requirement that two- thirds of

the electorate approve local special taxes " does not change our basic

governmental plan" because in all other areas the authority of local
government to enact laws and regulations remained unimpaired.

(Amador

supra 22 Cal.3d at pp. 227- 228. )

Because the Court

was dealing with local

power to levy taxes , rather than the State Legislature , and a requirement
of approval by a supermajority of the local electorate , not a supermajority of the State Legislature , the Court had no cause to consider issues such as
the effect of a two- thirds requirement on the balance of power between

coordinate branches of government and our system of checks and balances.
N or did the Court have reason to consider that the taxing authority is the

most critical of the Legislature s powers. (See pp. 18-

, above. ) By

contrast , even before passage of article XIII A , local governments had to
receive specific approval from the Legislature before levying new taxes.
(Voter Pamp. , Proposed Stats. and Amends. to Cal. Const. with arguments

to voters , Primary Elec. (June 6 , 1978), analysis by Legislative Analyst.)
Article XIII A merely added an additional

restriction on their already

limited taxing authority.

Petitioner here challenges only that portion of article XIII A that

provides for a two- thirds majority vote by the Legislature to approve
increases in taxation at the state level , i.e. , section 3; he does not challenge
the provisions at issue in

Amador which restricted local taxing authority,

and unlike section 3 ,

did not impair the State Legislature s constitutional

power to legislate by the foundational principle of majority rule or the
Governor s constitutional veto power.
Thus
Amador

erects no obstacle to the relief sought by this Petition.

For the reasons set forth above , the supermajority requirement of section 3
unlike the other provisions of article XIII A addressed in

Amador effects

an impermissible revision of the Constitution.

CONCLUSION
For the reasons stated above , Petitioner respectfully urges this Court

to hold that Article IV , section 12(d) and Article XIII A , section 3 , are
unconstitutional revisions to the California Constitution , and to grant the
relief sought in this Petition.

Respectfully submitted
Dated: July 9 2009

AKIN GUMP STRAUSS HAUER & FELD LLP William A. Norris Rex S. Heinke L. Rachel Helyar Orly Degani
Christopher Blanchard

Julian W. Park

By

/V~O'h~
William A. Norris

ATTORNEYS FOR PETITIONER

CERTIFICATE OF COMPLIANCE
(Cal. Rules of Court , Rule 8. 204(c))

This brief consists of 8 028 words as counted by the Microsoft Word

version 2002 word processing program used to generate the brief.
Dated: July 9 , 2009

AKIN GUMP STRAUSS HAUER & FELD LLP William A. Norris Rex S. Heinke L. Rachel Helyar
Orl y Degani Christopher Blanchard

Julian W. Park

By

)1/~

William A. Norris

o.n~

ATTORNEYS FOR PETITIONERS

PROOF OF SERVICE
STATE OF CALIFORNIA , COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles , State of California. I am over the age of 18 and not a party to the within action; my business address is: 2029 Century Park East , Suite 2400 , Los Angeles , California 90067. On July 9 , 2009 , I

PETITION FOR EXTRAORDINARY RELIEF, INCLUDING WRIT OF MANDATE;
served the foregoing document described as: MEMORANDUM OF POINTS AND AUTHORITIES

on the interested parties

below, using the following means:
Gregory Schmidt ,

Secretary of the Senate California State Senate State Capitol Room 3044 Sacramento , CA 94248 (916) 651- 4171
Diane F. Boyer- Vine Legislative Counsel of California 925 L Street , Suite 900 Sacramento , CA 95814 (916) 341- 8200

E. Dotson Wilson, Chief Clerk California State Assembly State Capitol
Room 3 196 Sacramento , CA 95814 (916) 319- 2856

~ BY I enclosed the document in an envelope or package provided by an overnight delivery carrier and addressed to the respective addresses of the parties stated above. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier.
OVERNIGHT DELIVERY

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
~ (STATE)

Executed on July 9 2009 , at Los Angeles , California.

Rose Shushanyan
IPrint Name of Person Executing Proof)
(;",,"=J

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