Friday, May 26, 2006
S.C. Bars Joinder of Unrelated Constitutional Changes on Ballot
By a MetNews Staff Writer
The Legislature cannot combine unrelated changes to the state Constitution into a single ballot measure, the state Supreme Court ruled yesterday.
The court agreed with the Third District Court of Appeal that lawmakers improperly combined two constitutional amendments into what would have been a single measure on the November 2004 ballot. The justices disagreed, however, with the Court of Appeal’s decision to split the two proposals into separate amendments.
The decision does not affect the validity of Propositions 60 and 60A, however, as the court said there was no reason to nullify the measures that the voters approved. Proposition 60 incorporates the partisan primary into the state Constitution, while Proposition 60A allows the sale of surplus state land to pay off bonds.
Supporters of Proposition 62, a failed initiative which would have set up a “Louisiana-style” open primary election, had sought to remove the Legislature’s competing measure from the ballot entirely.
Sens. Ross Johnson, R-Irvine, and Dede Alpert, D-Coronado, authored Proposition 60 to head off the proposal for an open primary placing all candidates on one primary ballot, with the top two vote-getters facing each other in a runoff, regardless of party.
Chief Justice Ronald M. George, writing for the court, rejected the argument of lawyers for the Legislature that its power to propose a constitutional “revision” supported combining the two amendments.
Sec. 1 of Article XVIII of the state Constitution permits the Legislature to propose “an amendment or revision” of the Constitution, but requires that when the Legislature proposes amendments, each must be “voted on separately.”
Reviewing the history of the proviso, along with related provisions of the constitutions of other states, George explained that the separate-vote requirement is a judicially enforceable limitation on legislative power.
He elaborated in a footnote that “[b]ecause, as noted above, the Legislature presented Resolution 103 as an amendment and not as a ‘revision’ or ‘partial revision,’ we need not address the problem of defining the contours of those terms.”
George said the Court of Appeal’s solution—splitting the resolution into two separate amendments—was erroneous, because the Legislature had not given either amendment, standing alone, the two-thirds majority vote needed to place it on the ballot; there was no expression of legislative intent that the two amendments go on the ballot separately in the event they could not go on together; and nothing in the language of history of the constitutional provision suggests that such bifurcation is an acceptable remedy.
The Court of Appeal’s approach, he added, could lead to skullduggery in the Legislature, with lawmakers inserting provisions that could not gain the necessary supermajority standing on their own but which would then go on the ballot as separate measures.
But since there was no such manipulation in this case, and given the unusual circumstances, the voters’ approval of the two measures should be allowed to stand, the chief justice said.
George’s opinion was joined by Justices Marvin Baxter, Joyce L. Kennard, Ming Chin, and Carol Corrigan. Justices Carlos Moreno and Kathryn M. Werdegar authored separate concurrences.
The case was argued in the Supreme Court by Fredric D. Woocher of Santa Monica’s Strumwasser & Woocher on behalf of Californians for an Open Primary, the pro-Proposition 62 group, and Robin B. Johansen of San Leandro’s Remcho, Johansen & Purcell for the Legislature.
The case is Californians for an Open Primary v McPherson, 06 S.O.S. 2598.
Copyright 2006, Metropolitan News Company