Tuesday, June 17, 2008
THE LEGAL COMMUNITY
Election Law: How One Legally Might Remove a Ballot Initiative Prior to an Election
BY KEVIN NORTE
The following is for educational purposes only and is written in contemporary times about a real issue but it is illustrative at best to evoke thought, discussion, and debate.
The issue to be discussed in the following educational article seriously addresses how one might be able to remove a ballot initiative from the ballot prior to an election in certain unique circumstances. It also discusses the reasoning and the underlying Constitutional principles that would have to be invoked to have a pre-election review. I encourage anyone who is interested in the issue to read all the cases cited in this article and not use this article alone for any purpose except education.
The issues are complex and the removal of an initiative as discussed in this article is only theoretical and analyzed from the perspectiev of issues raised by the the In re Marriages Cases (2008) 43 Cal.4th 757, and the subsequent certified initiative that reads as follows:
Limit on Marriage. Constitutional Amendment.
Summary Date: 11/29/07 Qualified: 06/02/08 Signatures Required: 694,354
Proponents: Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson c/o Andrew Pugno (916) 608-3065
Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: The measure would have no fiscal effect on state or local governments. This is because there would be no change to the manner in which marriages are currently recognized by the state. (Initiative 07-0068.)
SECTION I. Title
This measure shall be known and may be cited as the “California Marriage Protection Act.”
SECTION 2. Article I. Section7.5 is added to the California Constitution to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.
One may wonder if an initiative that was submitted to the Secretary of State and its language approved by the Attorney General, and reviewed by the Legislative Analyst and the Director of Finance and stated that the initiative “would have no fiscal effect on state or local governments is valid due to the findings of the Supreme Court subsequent to the petition being circulated. Prior to the case it was true there would be no change to the manner in which marriages are currently recognized by the state” was valid. Subsequent, however, to its circulation but prior to its certification, the California Supreme Court changed the law. Based upon my research, there is no precedent on this issue in California. However, to seek a pre-election review of the initiative, there appears to be only one viable option. That would be a challenge based upon the impropriety of the voter initiative itself. I have applied a strict construction application to the California Constitution, the subsequent amendments, and the Constitutional case law on the issue and believe that this is the only viable pre-election challenge that potentially could have merit.
Clearly, this is uncharted territory and an educational exercise limited to the issue of the grounds for a voter initiative pre-election review.
In reviewing the issue of pre-election review to seek the removal of the initiative, there appears to be only one manner of pre-election review. That appears to be to file a petition for a Writ of Mandamus for the Court to order Debra Bowen, the California Secretary of State, to remove the proposed ‘MARRIAGE PROTECTION ACT” aka “Limit on Marriage” Constitutional Amendment Initiative from the November, 2008 ballot because the initiative amounts to a constitutional revision1 and therefore is not proper as an amendment.
Petitioners could potentially seek the removal the initiative pursuant to Independent Energy Producers Assn. v. McPherson (2006) 38 Cal. 4th 1020, 1029.
The George Court has already unanimously determined pre-election review is not precluded when the challenge is based upon a claim that the initiative may not properly be submitted to the voters because it amounts to a constitutional revision rather than an amendment. (Independent Energy Producers Assn. v. McPherson (2006) 38 Cal. 4th 1020, 1029 (unanimous decision & opinion written by Chief Justice Ronald George).)
RAISING THE AMENDMENT VERSUS REVISION ARGUMENT:
As noted in McFadden v. Jordan (1948) 32 Cal.2d 330, 333: “The initiative power reserved by the people by amendment to the Constitution in 1911 (art. IV, §1) applies only to the proposing and the adopting or rejecting of ‘laws and amendments to the Constitution’ and does not purport to extend to a constitutional revision.”
It appears that the relationship between the government and the members of society cannot be altered without a revision to the Constitution. See California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 833-834:
For a revision to be found, “it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution. [Citations.]” (Legislature v. Eu, supra, 54 Cal.3d at p. 510, 286 Cal.Rptr. 283, 816 P.2d 1309, original italics.)
“What should a local government do if it believes an initiative measure is unlawful and should not be presented to the voters? A governmental body, or any person or entity with standing, may file a petition for writ of mandate, seeking a court order removing the initiative measure from the ballot. (See Farley v. Healey  [(1967)] 67 Cal.2d [325,] 327, 62 Cal.Rptr. 26, 431 P.2d 650.) But such entity or person may not unilaterally decide to prevent a duly qualified initiative from being presented to the electorate.” (Save Stanislaus Area Farm Economy v. Board of Supervisors (1993)13 Cal.App.4th 141, 149.)
Here, one might want to petition to request the Court to order Debra Bowen, as Secretary of State to remove the initiative from the ballot immediately because the “Limit on Marriage” amendment is actually a revision of a fundamental right enshrined in the California’s Constitution.
THE RIGHT TO MARRY:
I find that same-gender marriage may, on its face, appear to be a relatively simple enactment but it has accomplished such far reaching changes in the nature of our basic governmental plan by affecting and broadening an individual’s interest in personal autonomy protected by the right of privacy, the liberty interest protected by the due process clause, and the independent substantive right to marry, as well as equal protection. Therefore, a simple amendment that, “only marriage between a man and a woman is valid or recognized in California,” is not a mere amendment but amounts to wholesale evisceration and revision of at least three separate portions of the California Constitution that are not addressed in the initiative.
Marriage is not so simple. As the Court pointed out, “the right to marry is not properly viewed as simply a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basis civil or human right of all people.” (In re Marriage Cases, supra, 43 Cal.4th at 819, fn. 41.)
In Ortiz v. Los Angeles Police Relief Ass’n (2002) 98 Cal.App.4th 1288, 1303-1304, the Court of Appeal explained that marriage is a privacy right older than the Bill of Rights. As the Court of Appeal noted:
“We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects…
The policy favoring marriage is ‘rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society.’ ” (Elden v. Sheldon (1988) 46 Cal.3d 267, 274-275, 250 Cal.Rptr. 254, 758 P.2d 582.) “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”
See also Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 161 [“The right to marriage and procreation are now recognized as fundamental, constitutionally protected interests]; and DeBurgh v. DeBurgh (1952) 39 Cal.2d 858, 863-864 [“The family is the basic unit of our society, the center of the personal affections that ennoble and enrich human life. It channels biological drives that might otherwise become socially destructive; it ensures the care and education of children in a stable environment; it establishes continuity from one generation to another; it nurtures and develops the individual initiative that distinguishes a free people. Since the family is the core of our society, the law seeks to foster and preserve marriage.”]
In In re Marriage Case , supra, 43 Cal. 4th at 825, the California Supreme Court noted the following: “Our recognition that the core substantive rights encompassed by the constitutional right to marry apply to same-sex as well as opposite-sex couples…”
The Supreme Court further noted:
In light of the fundamental nature of the substantive rights embodied in the right to marry—and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society—the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation. (In re Marriage Cases, at 820.)
As marriage is a fundamental core right which now is defined to include the right of same-gender couples to marry under In re Marriage Cases, supra, 43 Cal. 4th 757, neither the state nor the initiative process can alter the definition of marriage such that it excludes same-gender couples. At best, the state or initiative process can merely amend the Constitution to “[create] incentives to marry and adopting measures to protect the marital relationship” or, alternatively, how a marriage can be “terminated.” (See In re Marriage Cases, at 816.) However, anything that goes beyond these measures, and intercedes into the now traditional definition of marriage, requires a revision of the state Constitution and the institution of marriage itself.
INTENT OF CERTIFIED INITIATIVE FOR NOVEMBER BALLOT:
The proposed initiative attempts to “change” the California Constitution that would result in removing the fundamental right to personal autonomy protected by the right of privacy, the liberty interest contained in the due process provision, equal protection, and the fundamental right to marry itself that same-gender couples are now afforded under the California Constitution by a voter initiative amendment. However, can a single sentence voter initiative amendment alter the Constitution’s comprehensive framework?
“[T]he 1962 amendment granted the Legislature the authority to propose either revisions or amendments....” (Californians for an Open Primary v. McPherson (2006) 38 Cal. 4th 735, 2006 Cal. LEXIS 6229, *55. With regard to the limitation on amendments and revisions:
Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313: “Article XVIII of the California Constitution allows for amendment of the Constitution by the Legislature, or initiative and revision of the Constitution by the Legislature, or a constitutional convention. There is no other method for revising or amending the Constitution. (Livermore v. Waite (1894) 102 Cal. 113, 117, 36 P. 424 (Livermore).)”
“‘[A]mendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” (Livermore, supra, 102 Cal. at pp. 118-119, 36 P. 424.) The “revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision.” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 350, 276 Cal.Rptr. 326, 801 P.2d 1077 (Raven).) “[A]n enactment which is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 223, 149 Cal.Rptr. 239, 583 P.2d 1281 (Amador).)
APPLICABLILITY TO THE QUALITATIVE AND QUANTITATIVE EFFECTS A MARRIAGE “INITIATIVE” WOULD HAVE ON CALIFORNIANS
According to the In re Marriage Cases (2008) 43 Cal.4th 757, 809: “Although our state Constitution does not contain any explicit reference to a “right to marry,” past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution…. In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation. “
The proposed initiative originally sought to limit the Constitutional right to marry to opposite-sex couples and, thus as originally drafted, it was intended to limit the right to marry to a man and a woman. But an amendment can no longer accomplish this. The Right to Marry exists and in light of the recent ruling, the initiative’s unintended consequence is an attempt to revise (as opposed to amend) the Constitution which, as explained in In re Marriage Cases, at 820, is a fundamental right to “all individuals and couples, without regard to their sexual orientation.”
“Whether an initiative constitutes an amendment or revision to the Constitution does not necessarily depend on the number of constitutional provisions it affects, but on the nature of the changes it makes. (Grodin et al., The California State Constitution: A Reference Guide, supra, at pp. 303-304.) For a revision to be found, “it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution.” See California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 833-834.
As Justice Moreno noted in a concurring opinion in Californians For An Open Primary v. McPherson (2006) 38 Cal.4th 735, 788:
Voters can propose amendments to the Constitution that will be placed on the ballot if the requisite number of signatures are obtained, but they may not propose constitutional revisions. (See Cal. Const., art. XVIII, § 3; Raven v. Deukmejian (1990) 52 Cal.3d 336, 349, 276 Cal.Rptr. 326, 801 P.2d 1077.)
See California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 833-834:
Although the electorate may amend the Constitution by initiative (art. XVIII, § 3), a revision of the Constitution may be accomplished only by a constitutional convention and popular ratification (art. XVIII, § 2) or by legislative submission of the measure to the electorate (art. XVIII, § 1). (Raven v. Deukmejian, supra, 52 Cal.3d at p. 349, 276 Cal.Rptr. 326, 801 P.2d 1077; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 221, 149 Cal.Rptr. 239, 583 P.2d 1281.)
It has been suggested “the revision provision is based on the principle that ‘comprehensive changes’ to the Constitution require more formality, discussion and deliberation than is available through the initiative process. [Citation.]” (Raven v. Deukmejian, supra, 52 Cal.3d at pp. 349-350, 276 Cal.Rptr. 326, 801 P.2d 1077; cf. Legislature v. Eu, supra, 54 Cal.3d at p. 506, 286 Cal.Rptr. 283, 816 P.2d 1309.)
In the In Re Marriage Cases, supra, 43 Cal.4th at p. 848, the California Supreme Court also noted:
The Fund and the Campaign assert that the common law definition of marriage as the union of a man and a woman is constitutionally enshrined in the California Constitution by virtue of language in the 1849 and 1879 Constitutions that employed the terms “marriage,” “wife,” and “husband” in providing constitutional protection for separate-property rights, thereby precluding the Legislature or the people through the statutory initiative power from modifying the current statutes to permit same-sex couples to marry….
[However] history belies the notion that any element that traditionally has been viewed as an integral or definitional feature of marriage constitutes an impermissible subject of judicial scrutiny….
In light of all of these circumstances, we conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of sections 300 and 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.
In other words, the California Supreme Court interpreted marriage as including the right of same-gender couples to marry. (ibid.) Therefore the statutory interpretations of marriage at Family Code §§ 300 and 308.5 were unconstitutional. (ibid. at 849.)
In In re Marriage Cases, at 809, the California Supreme Court reiterated that “the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution” and, consequently, “[a] statute that limits marriage to a union of persons of opposite sexes, thereby placing marriage outside the reach of couples of the same sex, unquestionably imposes different treatment on the basis of sexual orientation.” (In re Marriage Cases at 840.) As the Supreme Court further noted:
The court in Elden v. Sheldon further explained: “Our emphasis on the state’s interest in promoting the marriage relationship is not based on anachronistic notions of morality. The policy favoring marriage is ‘rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities in organized society.’ [Citation.] Formally married couples are granted significant rights and bear important responsibilities toward one another which are not shared by those who cohabit without marriage.... Plaintiff does not suggest a convincing reason why cohabiting unmarried couples, who do not bear such legal obligations toward one another, should be permitted to recover for injuries to their partners to the same extent as those who undertake these responsibilities.” (46 Cal.3d at p. 275, 250 Cal.Rptr. 254, 758 P.2d 582.)
A right so fundamentally rooted in society, a right which predates the Bill of Rights must, therefore, be a core element of the state constitution. Indeed, the Supreme Court notes in In re Marriages Case at 819:
Because our cases make clear that the right to marry is an integral component of an individual’s interest in personal autonomy protected by the privacy provision of article I, section 1, and of the liberty interest protected by the due process clause of article I, section 7, it is apparent under the California Constitution that the right to marry — like the right to establish a home and raise children — has independent substantive content, and cannot properly be understood as simply the right to enter into such a relationship if (but only if) the Legislature chooses to establish and retain it.
As noted in Livermore v. Waite (1894) 102 Cal. 113, 118:
The constitution itself has been framed by delegates chosen by the people for that express purpose, and has been afterwards ratified by a vote of the people, at a special election held for that purpose…The very term ‘constitution’ implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature.
At best, the state can create incentives to marry or, alternatively, to create conditions regulating the termination of a marriage. As the Supreme Court notes in In re Marriage Cases at 816:
“In view of the public’s significant interest in marriage, California decisions have recognized that the Legislature has broad authority in seeking to protect and regulate this relationship by creating incentives to marry and adopting measures to protect the marital relationship. (See, e.g., McClure v. Donovan (1949) 33 Cal.2d 717, 728, 205 P.2d 17 [“the Legislature has full control of the subject of marriage and may fix the conditions under which the marital state may be created or terminated”].)
POSSIBLE LEGAL RESULT
A new post May 15, 2008/post-June 17, 2008 California Constitutional analysis must be considered taking into consideration that a Constitutional “change” has occurred to a core element and at least four fundamental portions of the California Constitution by the Supreme Court. In light of the “change,” “the right to marry is not properly viewed simply as a benefit or privilege that a government may establish as it sees fit, but rather that the right constitutes a basic civil or human right of all people.” (In re Marriage Cases at 819, fn. 41.2) Taking into account that there are substantial changes in both the quantitative and qualitative effects of the initiative on our constitutional scheme as it now stands, a valid argument one could make is that “[s]ubstantial changes in either respect could amount to a revision. [Citations.]” (Raven v. Deukmejian, supra, 52 Cal.3d at p. 350, 276 Cal.Rptr. 326, 801 P.2d 1077; Legislature v. Eu, supra, 54 Cal.3d at p. 506, 286 Cal.Rptr. 283, 816 P.2d 1309.)
Consequently, one could legitimately make an argument that a petitioner would be entitled to immediate pre-election relief. Such a request would be for the Court to grant a petition for a Writ of Mandamus to order Debra Bowen, the California Secretary of State, to remove the proposed “Limit on Marriage” Constitutional Amendment Initiative from the November, 2008 ballot.
It is true that any pre-election ruling may irritate the voters and if unsuccessful have the potential for a ballot loss if is not removed. This concern should not be dismissed. Nevertheless, a ruling form the Supreme Court on this issue would clearly test the limits of the initiative process, potentially explain the criteria for ballot initiatives, and certainly make new law on the overall issue of the constitutional amendment versus revision process regardless of the outcome. The initiative, however, has been certified and ballots will soon be printed. Whether it is too late or not is not the subject of this educational piece, and other potential challenges to the initiative have not been analyzed.
1 On May 21, 2008, the Oregon Court of Appeals found that Measure 36 (prohibiting recognition of same-sex marriages) was not a “revision” to the Oregon Constitution and, thus, was valid. However, unlike California, Oregon has not found a fundamental right to marry based on a right of privacy. Indeed, the Oregon Court of Appeals noted: “In short, there was no antecedent omnibus common-law right to marry. Consequently, plaintiffs have not established that the enactment of Measure 36 deprives anyone of a remedy protected by Article I, section 10—and, by extension, Measure 36 does not amend Article I, section 10.” This language clearly distinguishes the Oregon ruling from California and, thus, lends credence to the claim that the proposed ballot initiative in California is, in fact, a revision to the state Constitution.
“Plaintiffs brought this action for declaratory relief against the Governor and the State of Oregon (the state), seeking a declaration that 2004 Ballot Measure 36, a voter-initiated measure, which prohibited recognition of same-sex marriages, did not comply with the provisions of Article XVII, sections 1 and 2, of the Oregon Constitution. On cross-motions for summary judgment, the trial court entered judgment in favor of defendants. Plaintiffs appeal, raising two overarching issues: (1) Did Measure 36 embody a “revision” to the constitution that could not originate from a voter initiative?...”
“We turn first to plaintiffs’ argument that Measure 36 embodies a revision to the Oregon Constitution rather than an amendment. That distinction is critical because, although an “amendment” to the constitution may be initiated by the voters, a “revision of all or part of” the constitution can be considered by the voters only by referendum after approval of at least two-thirds of the members of each house of the legislature….”
“Indeed, plaintiffs’ arguments here, while more refined, are strikingly similar to the plaintiffs’ contentions in Lowe referring to “profound impacts on existing fundamental rights and radical restructuring of the government’s relationship with a defined group of citizens.” Lowe, 130 Or App at 11. Accordingly, we adhere to Lowe and, given that adherence, conclude that Measure 36 was not a constitutional revision….”
2 Without the Court’s action, there is the potential for severe harm to same gender couples because the comprehensive change to “the right to marry” may be continually voted upon at each general election by mere amendments and violate the Constitution’s mandate that revisions require “more formality, discussion, and deliberation.” (Raven v. Deukmajian, supra, 52 Cal.3d at pp. 349-350.)
Copyright 2008, Metropolitan News Company