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No.

IN THE SUPREME COURT


0 F THE CALIFORNIA
TATE OF

CHARLES YOUNG , an individual


Petitioner

GREGORY SCHMIDT California


, in his capacity as Secretary of the

State Senate; and E. DOTSON WILSON , in his capacity as Chief


Clerk California State Assembly,
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


Of Taxing Authority, Is Not Relevant
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
v.

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

Legislature v.

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


Marbury Madison v.

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


McFadden v. Jordan
(1948) 32 Cal.2d 330.............................................................................. 21
Mistretta United States
v.

(1989) 488 U. S. 361.......................................................................... 17

Nogues Douglass
v.

(1857) 7 Cal. 65 ......................................................................................

Process Gas Consumers Group Consumer Energy Council of America


v.

(1983) 463 U. S. 1216.............................................................................. 16

Raven Deukmejian
Vo

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


Strauss Hortonv.

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

United States v. Ballin


(1892) 144 U. S. 1....................................................................................

Watchtower Bible Tract So co v. County of Los Angeles


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

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

Wood Riley
v.

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

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. (Strauss v. Horton
(2009) 46 Cal.4th 364 , 444; see also id. at pp. 427 , 430- 445
452.
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
jurisdiction over whether an amendment to the Constitution was
in fact , an unconstitutional revision); see also Brosnahan v.
Brown
(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 , quoting , supra 54 Cal.3d at
pp. 508- 509; see also 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. J?~
William A. Norris
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 a change in (the)
fundamental (governmental) structure or the foundational powers of its
branches. (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. (INS v. Chadha
(1983) 462 U.
919 958; see also County of Sonoma v. Superior Court (2009) 173

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;
see also Nogues v. Douglass
(1857) 7 Cal. 65 , 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
Bicameral and Presentment Clauses , art. I , ~ 7 , cls. 2- 3). California

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
recently, in Clinton v. City of New York (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

2 After
Chadha the Supreme Court summarily affirmed a D.
Circuit decision striking down a two House legislative override of
executive action. (Process Gas Consumers Group v. Consumer Energy
Council of America (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
Governor. (Wood v. Riley
(1923) 192 Cal. 293 , 306; see also Mistretta
United States
(1989) 488 U. S. 361 , 383 (provision oflaw that " prevents the

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.

3 Unlike the President under the federal Constitution


, the Governor
of California has authority under the State Constitution to exercise a line-
item veto power over appropriations. The Governor was given this
authority through a change to the Constitution in 1879. Conferring line-
item 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.
,"

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. ) Because under article IV , section 12(d), and article XIII A
section 3 , 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. " (Watchtower Bible Tract Soc. v. County of
Los Angeles
(1947) 30 Cal.2d 426 429 , emphasis added. Generally the
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
Legislature s power to enact a budget as " fundamental." (White Vo Davis
(2003) 30 Cal.4th 528 , 558; see also County of Sonoma v. Commission on
State Mandates (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. RA VENISSUBSTANTIVELY 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.
This Court' s decision in Raven is indistinguishable in any
meaningful way from this case. In 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

5 The federal practice


of filibustering lends no support to the two-
thirds 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
rule does not require a supermajority vote to a bill , only to end Senate
pass

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
350 , quoting Cal. Const. , art. I , ~ 24. ) Far 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
Joint Union High Sch. Dist. Vo Bdo Of Equalization (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. (Raven , supra
Cal.3d at p. 352 , quoting Amador, supra 22 Cal.3d at p. 223 , internal
quotation omitted. ) The Raven 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. (Raven , supra
Ca1.3d at p. 355. ) Like Proposition 115 , they have a far-reaching impact on
the " 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 AMADOR

NOT RELEVANT PRECEDENT IN THIS CASE.


In Amador this Court addressed another direct challenge to Article
XIII A , determined that article XIII A is not 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. (Amador, supra 22 Cal.3d at p. 228.
In 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
determined are constitutional amendments in Amador because section 3 is
severable from those other provisions. (See 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. 534- Calfarm Ins. Co. 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
Com.

quoting Calfarm , supra Raven , supra 52 Ca1.3d at


48 Ca1.3d at p. 821; see

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
of the challenged portion of section 3. (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.
, ~

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 " on local taxing authority, and , therefore , do not
disturb our basic governmental plan.
(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
, section I , provides that property taxes shall be
collected by the counties and apportioned according to law to the districts
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
within their boundaries. (Amador, supra 22 Cal.3d at pp. 226- 227. ) The
Amador Court found that " (i)n general (these formulae) aim at allocating
these funds on a pro rata basis without imposing any condition whatever
regarding their ultimate use (Id.
" 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 surprisingly, this Court rejected that argument.
The 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/~ o.n~
William A. Norris
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
served the foregoing document described as:

EXTRAORDINARY RELIEF, INCLUDING WRIT OF MANDATE;


MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties
below, using the following means:

Gregory Schmidt , Secretary of the Senate E. Dotson Wilson, Chief Clerk


California State Senate California State Assembly
State Capitol State Capitol
Room 3044 Room 3 196
Sacramento , CA 94248 Sacramento , CA 95814
(916) 651- 4171 (916) 319- 2856

Diane F. Boyer- Vine


Legislative Counsel of California
925 L Street , Suite 900
Sacramento , CA 95814
(916) 341- 8200

~ BY OVERNIGHT DELIVERY 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.
~ (STATE) I declare under penalty of perjury under the laws of the State
of California that the foregoing is true and correct.
Executed on July 9 2009 , at Los Angeles , California.

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