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COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
HOWARD JARVIS TAXPAYERS ASSOCIATION, ET AL., Petitioners and Appellants, v. DEBRA BOWEN, SECRETARY OF STATE, ET AL., Respondents and Respondents.
Appeal from a Judgment by the Superior Court, Sacramento County Case No. 34-2008-80000048-CU-WM-GDS, Hon. Michael P. Kenny
APPELLANTS’ OPENING BRIEF
Trevor A. Grimm, SBN 34258 Jonathan M. Coupal, SBN 107815 Timothy A. Bittle, SBN 112300 Howard Jarvis Taxpayers Foundation 921 Eleventh Street, Suite 1201 Sacramento, CA 95814 Telephone: (916) 444-9950 Facsimile: (916) 444-9823 Attorneys for Appellants
RULE 8.204(a)(2) STATEMENT This case of first impression avers that when the State Legislature is the proponent of a measure on the ballot, it has a conflict of interest which, under article II, §§ 3 and 4 of the state constitution, disqualifies it from preparing the impartial descriptions and analyses for the voters. In this case, the Legislature wrote the ballot label, title and summary for Proposition 1A, the high-speed rail bond, on the November 2008 statewide ballot. This action was brought as an election writ during the measure’s specially shortened 8-day public examination period. Petitioners sought an order that the Legislature, being prohibited from drafting the analyses for its own measure, must allow the Attorney General, or assign someone else who is impartial, to write the ballot label, title and summary. After an expedited hearing, the Judge, applying a deferential standard of review, ordered certain false statements corrected in the Legislature’s ballot materials, but ruled against petitioners on the larger question of whether the Legislature is allowed to write the ballot materials. Judgment was entered on September 3, 2008. Petitioners timely appealed. The judgment is now final. ISSUES ON APPEAL 1. Under article II, §§ 3 and 4, is it constitutionally permissible for
the Legislature, when it is the proponent of a measure, to dictate the wording of the impartial information that the voters will see for that measure? 2. If so, should the standard of judicial review for that wording be
higher than the deferential standard applied by the Superior Court? STATEMENT OF FACTS In the waning hours of the 2008 legislative session, AB 3034 was gutted, amended, and jammed through an abbreviated hearing and concurrence process to place Proposition 1A on the November 4, 2008, ballot. See Bill History, Clerk’s Transcript (“CT”) at 121. 1
Proposition 1A was a $9.95 billion bond proposal to provide seed money for the construction of high-speed rail lines on one or more optional routes listed in the measure. See AB 3034, CT at 85:30.1 Ordinarily, the Attorney General prepares an impartial ballot label, and ballot title and summary for any statewide measure presented to the voters, including any measure presented by the Legislature. Elec. Code §§ 9051, 9086, 13280, 13281; Gov. Code § 88002. In the rare case where the Attorney General has a conflict of interest because he authored the measure, Legislative Counsel assumes responsibility for preparing the impartial ballot label, title and summary. Elec. Code § 9003. In the bill placing Proposition 1A on the ballot, the Legislature wrote its own ballot label, title and summary, and “notwithstanding any other provision of law,” prohibited the Attorney General from revising them or preparing his own. The bill also required the Secretary of State “notwithstanding any other provision of law,” to print in the ballot only what the Legislature had written. CT at 98:33, 99:12, 99:26, and 100:13. According to the evidence before the Superior Court, this phenomenon of the Legislature supplanting the Attorney General’s impartial analyses was unprecedented in California’s long electoral history until quite recently. The Legislature wrote the title and summary for a tax increase, Proposition 111, on the June 1990 ballot. See Stats 1989, ch. 106, CT at 170. Another fourteen years passed, and then the practice exploded. The Legislature wrote the ballot label, and the title and summary for a bond to balance the state budget, Proposition 57, on the March 2004 ballot. See Stats 2003, ch. 2, CT at 167. In the next statewide election cycle, the Legislature placed three bond proposals, Propositions 1B, 1C, and 1D, on the November 2006 ballot and
AB 3034 appears in its last-amended bill form, rather than chapter form (which lacks line numbers), for ease of citation.
wrote their ballot labels. See Stats 2006, ch. 25, 27, & 35, CT at 152, 155, & 160. In the next statewide election cycle, the Legislature wrote the ballot label, title and summary for the high-speed rail bond at bar. At the very next election, which is the May 2009 special election, the Legislature not only wrote the ballot label, title and summary, but specified who could write the argument against a proposition that triggers a $16 billion tax increase. (The Court may judicially notice Case No. C061350, where the same parties are litigating the May 2009 measure over the same issues.) In the case at bar, the Legislature bent several rules to give its measure an advantage. It required that its measure “be placed as the first ballot measure on the November 4, 2008, general election ballot and ... be designated as Proposition 1A.” CT at 93:29. It shortened the public examination and challenge period from “not less than 20 days” (Gov. Code § 88006) to “not more than eight days.” CT at 100:38. It reduced the opponents’ campaign time from 131 days (Elec. Code § 9040) to only 70 days. CT at 121 (AB 3034 enrolled Aug. 26, 2008), 98:24 (“this act shall be submitted ... to the voters at the November 4, 2008, general election”). It also expanded the word limit for the ballot label from 20 words (Elec. Code § 13280) to over 100 words. CT at 98:33. The biggest advantage taken by the Legislature, however, and the one appellants herein have challenged, was suspending the Attorney General’s authority to prepare the impartial ballot label, title and summary, and requiring the use of its own proponent-authored materials instead. After an expedited hearing, the Judge held the constitution does not preclude the Legislature from dictating how the ballot’s impartial descriptions and analyses will read for its own measure. CT at 235. Moreover, his Order states, “The Court declines to read into the Constitution’s general terms a specific requirement that Legislature-drafted ballot information must be totally impartial.” Id. Thus the Judge deferred to the Legislature’s wording except 3
where petitioners established “upon clear and convincing proof ... that the copy in question [was] false [or] misleading.” CT at 234. He corrected two “clear and convincing” falsehoods (CT at 230, 231), but denied any other relief. The Proposition 1A bond was passed by the voters. Appellants are not asking to have the election invalidated or issuance of the bond enjoined. They simply want this Court to determine whether the Superior Court erred by not issuing a writ directing the Legislature, in light of its conflict of interest, to have the Attorney General or another disinterested party write the impartial materials for the voters. A decision is important for future reference because the issue is not only capable of repetition, it is obviously a growing trend. Because election writs must be processed in extreme haste to accommodate the printing of ballots (Elec. Code § 13314 (a)(2)), which often makes appellate review infeasible, the issue may continue to evade review if this Court does not address it now. STANDARD OF REVIEW “The scope of [appellate] review in an election contest is no different from that in other appeals: [courts] review factual findings for substantial evidence and questions of law de novo. The trial court determined that the election contest raised pure questions of law and decided the case based on briefing and argument without holding an evidentiary hearing. Therefore ... review is de novo.” Greene v. Marin County Flood Control and Water Consv. Dist. (2009) __ Cal.App.4th __ (slip opinion (attached to Request for Judicial Notice) at 9); Silicon Valley Taxpayers Assn. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431, 448-49. ARGUMENT I THE LEGISLATURE CANNOT WRITE THE IMPARTIAL DESCRIPTIONS AND ANALYSES FOR ITS OWN BALLOT MEASURES 4
The Legislature Suspended Essential Checks and Balances that Guarantee Ballot Neutrality For every measure on the ballot, state law allows arguments for and
against the measure, and rebuttals. Elec. Code §§ 9041, 9042, 9069. The arguments and rebuttals are expected to take sides, and there is no requirement that they explain, or even disclose, the changes a measure will make to the law. They appear in the Voter Information Guide above a warning: “Arguments printed on this page are the opinions of the authors and have not been checked for accuracy by any official agency.” Gov. Code § 88002. For voters, “[o]ne difficulty with relying on ballot arguments is that they are stronger on political rhetoric than on legal analysis.” Carlos v. Superior Court (1983) 35 Cal.3d 131, 143 n.11. It is a different story, however, for the “Official Title and Summary” and the measure’s label on the ballot itself. These materials are supposed to contain neutral factual information that voters can rely on. California courts have long recognized that the function of these impartial elements of the ballot “is to inform the [voters] of the general purpose of the proposal, and to protect [them] from being misled or imposed upon.” Clark v. Jordan (1936) 7 Cal.2d 248, 252 (title and summary provided to prospective signers of ballot petition). California has established a framework of checks and balances to ensure that voters do have reliable information, and that they are protected from being misled or imposed upon. The constitution tasks the Attorney General, an independently elected constitutional officer, with the duty of preparing, for voter initiatives and legislative referenda, “a title and summary of the measure.” Cal. Const., art. II, § 10; Gov. Code § 88002. He also prepares a “ballot label ... contain[ing] a condensed statement in, where possible, not more than 20 words of each measure to be voted on, accompanied by the words ‘Yes’ and ‘No.’” Elec. Code § 13280. 5
These materials must be “impartial” and present the “chief purposes and points of the proposed measure” (Elec. Code § 9004) “in such language that [they] shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.” Elec. Code § 9051. The responsibility for preparing the impartial information on the ballot is entrusted to the Attorney General because, as the legal representative of the People of California and “unbiased by the obligation of representing a particular viewpoint” (City of Sacramento v. State of California (1984) 156 Cal.App.3d 182, 192) he is presumed to not take sides, but to be objective in describing the measure and the changes in law it proposes. Songstad v. Superior Court (2001) 93 Cal.App.4th 1202, 1209-10. To protect voters against an interested party preparing the impartial elements of the ballot, the law provides that should the Attorney General have a conflict of interest because he himself is the proponent of a measure, the Legislative Counsel must prepare the ballot label, title, and summary for that measure. Elec. Code § 9003. In this case, the Legislature suspended “any other provision of law” designed to protect ballot neutrality. Unchecked by these restraints, the Legislature rearranged the ballot order, halved the public’s review time and campaign time, expanded its own word limit, and required that the ballot not contain impartial descriptions and analyses prepared by the Attorney General, but instead carry its own political solicitations in their place. In other words, the very harm that Elections Code section 9003 is designed to guard against (an interested party preparing the impartial elements of the ballot) was in this case mandated by the Legislature. The advocacy of an interested party appeared on the ballot masquerading as objective voter guidance to the detriment of every voter who relied on it. B. The Legislature is Presumed Biased, 6
And its Materials Were in Fact Biased The Legislature cannot claim to be impartial toward its own measure. As the Supreme Court recently observed in Vargas v. City of Salinas (2009) __ Cal.4th __ (slip opinion attached to Request for Judicial Notice), “it is apparent that in many circumstances a public entity inevitably will ‘take sides’ on a ballot measure and not be ‘neutral’ with respect to its adoption. For example, when a city council or county board of supervisors votes to place a bond or tax measure before the voters, it generally is quite apparent that the governmental entity supports the measure and believes it should be adopted by the electorate.” Slip Op. at 43.2 In the same way, when the Legislature votes to place a measure on the ballot, it “inevitably will ‘take sides’ ... and not be ‘neutral’ with respect to its adoption.” The Legislature’s admiration for its own measure is evident in the materials it required the Secretary of State to print for the high-speed rail bond. The ballot label is a good illustration: “To provide Californians a safe, convenient, affordable, and reliable alternative to driving and high gas prices; to provide good-paying jobs and improve California’s economy while reducing air pollution, global warming greenhouse gases, and our dependence on foreign oil, shall $9.95 billion in bonds be issued to establish a clean, efficient high-speed train service linking Southern California, the Sacramento/San Joaquin Valley, and the San Francisco Bay Area, with at least 90 percent of bond funds spent for specific projects, with federal and private matching funds required, and all bond funds subject to independent audits?” CT at 98:37.
Unless noted otherwise, all emphasis is added.
The promotional tenor of the Legislature’s material is seen in sharp contrast when compared to a summary prepared by the Attorney General for a similar rail bond. The Attorney General’s summary for Proposition 116 on the 1990 Primary Election ballot read: “Authorizes general obligation bond issue of $1,990,000,000 to provide funds principally for passenger and commuter rail systems, with limited funds available for public mass transit guideways, paratransit vehicles, bicycle and ferry facilities, and railroad technology museum. Allocates certain amounts to specified state and local entities through a grant program administered by the California Transportation Commission. Program will require some matching funds from local entities. Appropriates money from state General Fund to pay off bonds.” Appellants’ Request for Judicial Notice, Ex. 1. In writing its label, the Legislature did more than inform; it advocated. The wording is not impartial; it is argumentative. Indeed, the label virtually mirrors the argument in favor of the measure, which read in part: “Proposition 1A will bring Californians a safe, convenient, affordable and reliable alternative to soaring gasoline prices, freeway congestion, rising airfares, and fewer flights available. It will reduce California’s dependence on foreign oil and reduce greenhouse gases that cause global warming. ... Matching private and federal funding to be identified BEFORE state bond funds are spent. 90% of the bond funds to be spent on system construction, not more studies, plans and engineering activities.” CT at 122, 124. Descriptions such as “safe, convenient, affordable, and reliable,” when applied to a system that is not yet built, are neither factual nor impartial. 8
Whether the route constructed with these bond funds “provide[s] Californians a safe, convenient, affordable, and reliable alternative to driving and high gas prices” depends on many unpredictable future circumstances such as: which of the alternative routes listed in the measure is selected (CT at 85:30); whether the necessary matching funds materialize (CT at 87:14); whether private investors can be found to operate the trains and stations (“Proceeds of bonds authorized pursuant to this chapter shall not be used for any operating or maintenance costs of trains or facilities”3 CT at 86:34); what the ticket price of privately operated trains will ultimately be; and whether gasoline prices will return to over $4.00 as they were when the Legislature wrote the ballot label. The description of the future system as “safe” and “reliable” is particularly argumentative. Even if the state were controlling the operation and maintenance of the system, but especially since it is not, there is no way to foreknow whether the trains and 800 miles of unguarded track will be safe and mechanically reliable. C. Government Control of What Voters May See on the Ballot Violates the Constitution’s “Free Elections” and “Improper Practices” Guarantees The materials prepared by the Legislature for the high-speed rail bond plainly violate the statutory standard of objectivity that would have applied had the Attorney General prepared them. For the Attorney General must “give a true and impartial statement of the purpose of the measure in such language that [it] shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.” Elec. Code § 9051.
The High-Speed Rail Authority has published a Request for Expressions of Interest for Private Participation, which states: “The Authority believes it will be necessary to rely on the private sector for many aspects of the Project’s development, including civil works, equipment supply, operations, maintenance, and financing.” CT at 109.
While the Legislature enjoys great discretion at the margins to revise the non-substantive procedures and administration of state elections, it is always constrained by the constitutional guarantees that elections will be “free” and not “affect[ed]” by “improper practices.” Cal. Const., art. II, §§ 3, 4. “[L]egislative bodies retain considerable discretion in formulating election procedures and devising regulations for the form and content of ballots. As in all other areas of governmental action, however, the exercise of such discretion remains subject to constitutional limitations.” Gould v. Grubb (1975) 14 Cal.3d 661, 669. The right to vote is meaningless without the right to a fair election. “No right is more precious in a free country.” Canaan v. Abdelnour (1985) 40 Cal.3d 703, 714. “Other rights, even the most basic, are illusory if the right to vote is undermined.” Id.; Castro v. State of California (1970) 2 Cal.3d 223, 234. For this reason, courts have a solemn duty to “preserv[e] the integrity of the election process.” Fair v. Hernandez (1981) 116 Cal.App.3d 868, 881. The State (which includes this Court) has a compelling interest in “a well-informed electorate” and in “prevent[ing] corruption of the electoral process.” Griset v. Fair Political Practices Com. (1994) 8 Cal.4th 851, 862. That interest is of “sufficient magnitude to permit the restriction [of] ... speech designed to influence the outcome of an election.” Id. A “fundamental precept” of the right to a fair election “is that the government may not ‘take sides’ in election contests or bestow an unfair advantage on one of several competing interests.” Stanson v. Mott (1976) 17 Cal.3d 206, 217. Such governmental “attempts to influence the resolution of issues which our Constitution leaves to the ‘free election’ of the people ... present a serious threat to the integrity of the electoral process.” Id. at 218 (citations omitted). As quoted in Stanson, the California Constitution guarantees “free 10
elections.” Cal. Const., art. II, § 3. “Free” in this context does not mean “without cost,” since poll taxes had long been banned by the 24th Amendment when this provision was added to the state constitution in 1972. “Free” means “not influenced by the government.” That is how it was used when the Supreme Court quoted it in Stanson: “[governmental] attempts to influence the resolution of issues which our Constitution leaves to the ‘free election’ of the people ... present a serious threat to the integrity of the electoral process.” 17 Cal.3d at 218. That also is how it was used in Greene v. Marin County Flood Control and Water Conservation District where, because a local government exerted pressure on voters to vote a certain way by requiring them to identify themselves on their ballots, the court ruled: “the lack of secrecy in the District’s fee election was a widespread violation of a constitutional safeguard of free elections.” Slip Op. at 31. The word “free” in connection with constitutional election guarantees is used again to mean “not influenced by the government” in the findings of article IV, section 1.5, which imposes term limits on the Legislature: “The people find and declare that the Founding Fathers established a system of representative government based upon free, fair, and competitive elections. The increased concentration of political power in the hands of incumbent representatives has made our electoral system less free, less competitive, and less representative.” This finding couldn’t mean that voting cost more, because it cost nothing to vote in 1999 when this provision was added. The guarantee of “free” elections, especially when listed alongside the word “fair,” obviously means elections the outcome of which is not manipulated by the government. Trying to secure the outcome, or in the words of Stanson, an “attempt to influence” the election is the obvious motivation when the Legislature makes special rules for its own ballot measure–suspending the authority of the 11
independently elected constitutional officer whose job it is ordinarily to prepare an impartial analysis for the voters–so that it can substitute its own, proponent-controlled propaganda. Besides its general guarantee of free elections, the constitution imposes a specific duty on the Legislature to prohibit improper practices that could affect an election. Article II, section 4 states: “The Legislature shall prohibit improper practices that affect elections.” While this provision of the constitution has apparently never been litigated, its meaning is plain on its face. To protect their own right to “free” and “fair” elections, the people imposed a duty on the Legislature, declaring that any practice which could affect the outcome of an election is improper and shall be prohibited by the Legislature. By suspending the role of the Attorney General and writing its own ballot label, title and summary, which are not impartial but attempt, by favorable descriptions and nonfactual statements of debatable opinion, to influence voters to vote for the measure, the Legislature has itself become guilty of an improper practice aimed at affecting the election. When the Legislature does this, it not only neglects, but betrays its duty under article 2, section 4. In Stanson v. Mott, cited earlier, our Supreme Court emphasized “[t]he importance of governmental impartiality in electoral matters” because “a fundamental goal of a democratic society is to attain the free and pure expression of the voters’ choice of candidates.” Therefore, “the government must, if possible, avoid any feature that might adulterate or, indeed, frustrate, that free and pure choice.” Stanson, 17 Cal. 3d at 219 (quoting Gould v. Grubb, 14 Cal.3d at 677); Rees v. Layton (1970) 6 Cal.App.3d 815, 823. In Gould v. Grubb the Supreme Court invalidated a municipal ordinance which granted the top positions on the ballot to incumbents seeking 12
reelection. In light of the trial court’s finding that a statistical advantage accrued to candidates whose names occupied the top ballot positions, the Court held the government could not properly reserve such positions for incumbents. “[W]e emphatically reject the notion that the government may consciously choose to favor the election of incumbents over nonincumbents in a manner which distorts the preferences of participating voters.” 14 Cal.3d at 673. The same principle must apply where the Legislature attempts to “favor the election” of its own ballot measure by manipulating not merely the order of information on the ballot, but the actual content of the information. The Legislature cannot act “in a manner which distorts the preference of participating voters.” Gould, 14 Cal.3d at 673. It was in Gould that the Court announced the rule which Stanson reiterated: “the government must, if possible, avoid any feature that might adulterate or, indeed, frustrate, [the voters’] free and pure choice.” If “the government must ... avoid any feature that might adulterate or, indeed, frustrate, [the voters’] free and pure choice,” then the Legislature may not ignore its own conflict of interest and dictate the content of the impartial elements of the ballot for a measure it is sponsoring. California law ordinarily protects voters from being lobbied in or near their polling place. Under Elections Code section 18370 it is a crime to engage in electioneering or to “[s]olicit a vote or speak to a voter on the subject of marking his or her ballot” within 100 feet of a polling place. When the campaigning is left behind and voters enter the voting booth and take one final look at the ballot on which they will cast their vote, they are entitled to assume that they are not still being solicited. Indeed, the public has a “right to an accurate impartial analysis” because it bears “an imprimatur of official approval ... and is likely to carry greater weight in the minds of the voters than normal campaign literature.” Hull v. Rossi (1993) 13 Cal.App.4th 1763, 1768; 13
Knoll v. Davidson (1974) 12 Cal.3d 335, 352; Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578, 585. Therefore “voters have a right to rely on the integrity of the ... process and the accuracy of the [information] which they properly believe complies with Elections Code requirements.” San Francisco Forty-Niners v. Nishioka (1999) 75 Cal.App.4th 637, 647. It is not enough for the Legislature to say that it passed a special statute suspending the Elections Code requirements. For one thing, courts do not expect average voters to compare the lengthy text of every ballot measure with existing law to determine what has changed. Brosnahan v. Brown (1982) 32 Cal.3d 236, 257. Moreover, when ballot arguments are accompanied by a warning that the materials “printed on this page are the opinions of the authors,” but the title and summary are still marked “Official” with no such warning, voters are not even tipped off that a change affecting their faith in the Elections Code requirements has occurred. Most importantly, however, the generally applicable Elections Code statutes were enacted to implement the constitutional requirements that elections be free and not affected by improper practices. Suspending the Elections Code requirements does not disarm the constitutional protections that underlie them. To the contrary, “the California Constitution is ‘the supreme law of the state’ to which all statutes must conform.” Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 963 (quoting Carter v. Seaboard Finance Co. (1949) 33 Cal.2d 564, 579); County of Los Angeles v. Payne (1937) 8 Cal.2d 563, 574. The Legislature’s new tactics of adopting special rules applicable only to its measure, and suspending “any other provision of law,” the obvious aim of which is to take advantage of voters and influence the outcome of the election, should be deemed “improper practices that affect elections” for the 14
purpose of making them less “free,” in violation of article II, sections 3 and 4, which guarantee elections that are free from government manipulation, and prohibit improper practices that affect elections. As a prophylactic measure to ensure the protection of voters and the integrity of elections, this Court should enforce article II, sections 3 and 4 by prohibiting the Legislature from writing the impartial descriptions and analyses of its own ballot measures. No other proponent is allowed to continue pitching its message inside the voting booth by hijacking the impartial sections of the ballot. The Legislature cannot pass a law making itself a special class to which other laws do not apply. It too is bound by the constitution. Given the Legislature’s growing appetite for describing its own ballot measures, any remedy short of prohibiting the practice would only lead to more litigation as the Legislature pushes the envelope of whatever textual boundaries the Court describes. Prohibiting the practice altogether, which appellants believe is constitutionally required, would reduce the number of emergency election writs the courts must hear by eliminating this category of cases where the Legislature replaces the impartial ballot label, title and summary with its own political propaganda. II IF THE CONSTITUTION ALLOWS THE LEGISLATURE TO PREPARE BALLOT INFORMATION FOR ITS OWN MEASURES, THEN HEIGHTENED SCRUTINY APPLIES The Superior Court not only rejected the constitutional principle that the Legislature may not try to influence the outcome of the vote on its own ballot measure by dictating the content of the “impartial” information that voters will see, the Judge also ruled that no heightened level of scrutiny is called for when a court reviews what the Legislature is requiring the ballot to contain: “The Court declines to read into the Constitution’s general terms a specific
requirement that Legislature-drafted ballot information must be totally impartial.” CT at 235. Thus the Judge deferred to the Legislature’s wording except where petitioners established “upon clear and convincing proof ... that the copy in question [was] false [or] misleading.” CT at 234. Applying the test applicable to judicial review of ballot arguments, the Judge said, “In determining whether statements are false or misleading, courts look to whether the challenged statement is subject to verifiability, as distinct from ‘typical hyperbole and opinionated comments common to political debate.’” CT at 235. In other words, the Judge believed that “hyperbole and opinionated comments common to political debate,” if not verifiably false, are appropriate for the impartial ballot label, title and summary. This is not the standard applied to the label, title and summary, even when prepared by the Attorney General. While a challenger must show by clear and convincing proof that an argument is false or misleading to have it judicially corrected, the Elections Code permits corrections of other aspects of the ballot if necessary to comply with other Election Code provisions (Elec. Code § 13314(a)(2)), including those provisions requiring the Attorney General to act “impartially” in describing for the voters the “chief purposes and points of the proposed measure” (Elec. Code § 9004) “in such language that [it] shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.” Elec. Code § 9051. If the Legislature is permitted by the constitution to prepare the impartial summaries of its own measures, then its wording should at least be subject to this standard of impartiality normally applicable to such summaries, despite the purported suspension of the statute imposing that standard. There was no justification for the Superior Court to choose the lesser statutory standard applicable to arguments, since all statutes, including the one 16
containing the lesser standard, had been suspended by the sweeping mandate “[n]otwithstanding any other provision of law.” Prior to 1937, the Attorney General prepared a 100-word title and summary for the first page of any statewide initiative petition, and the proponents were allowed to draft their own 20-word “short title” for the top of all subsequent pages. Epperson v. Jordan (1938) 12 Cal.2d 61, 65. Political Code section 1197b required that “Across the top of each page after the first page of every initiative ... petition ... there shall be printed in eighteen-point gothic type a short title, in not to exceed twenty words, showing the nature of the petition and the subject to which it relates.” Boyd v. Jordan (1934) 1 Cal.2d 468, 470-71. In the same way that the Legislature here wove its bias for its own measure into the title and summaries it prepared, so others had done with the titles for their initiatives while section 1197b was in effect. “Everything that possibly could induce an elector to sign the proposal is carefully included in the short title, but the one thing that would cause him to hesitate ... [is] excluded. [In sum,] the ‘short title’ includes ‘all the sweet and excludes all the bitter.’” Clark v. Jordan (1936) 7 Cal.2d 248, 251. Several cases struck down proponent-written titles applying a heightened level of scrutiny. E.g., Clark v. Jordan 7 Cal.2d 248, Boyd v. Jordan 1 Cal.2d 468. But when the law changed and a presumptively neutral party, the Attorney General, took over, the courts relaxed their inquiry: “These 1937 amendments worked an important change in the law ... and have modified to some extent the rule of the Boyd and Clark cases. ... In those cases the titles therein challenged were the short titles prepared by the proponents of the measures. ... [Today,] in approaching the question as to whether the title so prepared is a proper one all legitimate presumptions should be indulged in favor of the propriety of the attorney-general’s actions.” Epperson v. Jordan 17
(1938) 12 Cal.2d 61, 66. If the Legislature is permitted by the constitution to prepare the impartial summaries of its own measures, then a return by the courts to a higher level of scrutiny is warranted. As the court in Gould held, when invalidating an ordinance that gave incumbents the top ballot positions, “[B]ecause the substantial advantage which accrues to a candidate in a top ballot position may significantly distort the equality and integrity of the electoral process ... the disparate treatment resulting from such a classification scheme must be shown to be necessary to achieve a compelling governmental interest.” Gould v. Grubb, 14 Cal.3d at 674-75. The court called this a “standard of ‘close scrutiny.’” Id. at 675. So too here, where the ballot label, title and summary were not prepared by a presumptively neutral party, but by the “inevitably” biased proponent of the measure (Vargas v. City of Salinas __ Cal.4th __ (slip op. at 43)), and where the advantage which accrues to the proponent in not only revising the order of the ballot, but its contents, “may significantly distort the equality and integrity of the electoral process” (Gould v. Grubb, 14 Cal.3d at 674-75), the courts should look with “close scrutiny” at the wording and reject it if it is not “impartial.” CONCLUSION For these reasons, this Court should enforce article II, sections 3 and 4 of the California Constitution by prohibiting the Legislature from writing the impartial descriptions and analyses of its own ballot measures. If the Court finds, however, that the Constitution permits the Legislature to prepare the impartial summaries of its own measures, then the Legislature’s wording should at least be reviewed with heightened scrutiny and rejected it if it is not “impartial.” DATED: April 29, 2009. 18
Respectfully submitted, TREVOR A. GRIMM JONATHAN M. COUPAL TIMOTHY A. BITTLE ______________________ Timothy A. Bittle Counsel for Appellants
WORD COUNT CERTIFICATION I certify, pursuant to Rule 8.204(c) of the California Rules of Court, that the attached brief, including footnotes, but excluding the caption page, tables, and this certification, as measured by the word count of the computer program used to prepare the brief, contains 5,545 words. DATED: April 29, 2009.
______________________ Timothy A. Bittle Counsel for Appellants
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