Friday, January 28, 2011
Legislature Cannot Dictate Ballot Language on Initiative—C.A.
Title, Label and Summary Must Be Written by Attorney General, Panel Says
By KENNETH OFGANG, Staff Writer
The Legislature cannot dictate the label, title, and summary for ballot measures, whose authorship has been assigned by initiative to the attorney general, the Third District Court of Appeal ruled yesterday.
Reversing a Sacramento Superior Court judge, the court agreed with the Howard Jarvis Taxpayers Association that lawmakers usurped the role of the attorney general by specifying language used to identify and summarize Proposition 1A, which was narrowly approved by voters in November 2008.
The ruling does not affect the validity of the measure, a $9.95 billion bond issue for construction of high-speed rail and related projects. But if it stands, it will put an end to a practice that has been employed a number of times when lawmakers have sought to influence the outcome of a public vote.
The Legislature placed the measure on the ballot, a precondition for the issuance of general obligation bonds under the Constitution, by passing AB 3034 in August 2008.
In addition to authorizing the vote, AB 3034 specified that the measure be titled the “Safe, Reliable High-Speed Passenger Train Act” and be labeled on the ballot by asking voters:
“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?’”
The law dictated similar language for the official summary of the measure, and precluded the use of any other language as part of the title, summary, or label.
Prior to the election, the Howard Jarvis Taxpayers Association and an individual taxpayer petitioned the Sacramento Superior Court for a writ of mandate directing the secretary of state to “request an impartial Ballot Label, Title, and Summary from the Attorney General” in place of the legislatively mandated language. Alternatively, it asked that the language be amended in order to make it less “one-sided” and eliminate statements alleged to be false or misleading.
Judge Michael P. Kenny ordered a slight modification in the ballot summary, but otherwise denied relief.
Following the election, the petitioners appealed. They told the court that while they were not seeking to overturn the election results or enjoin the sale of the bonds, they wanted the 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.”
Attorneys for the Legislature moved to dismiss the appeal as moot, but retired Presiding Justice Arthur Scotland, writing for the court yesterday, said the likelihood of a recurrence of the controversy and the public interest involved support a resolution of the issue on the merits.
In a footnote, Scotland pointed out that the Legislature has taken similar action with respect to 11 other ballot measures since 1990, including six since Proposition 1A.
The petitioners argued that the use of biased and “promotional” ballot language violates the rights to “free elections” and to freedom from “improper practices that affect elections,” as set forth in Art. II of the state Constitution. Scotland said it was unnecessary to decide the constitutional issue, because the petitioners are entitled to relief under the Political Reform Act, adopted as Proposition 9.
Scotland agreed with the petitioners that the plain language of Proposition 9 requires an impartial summary, ballot title, and label for each statewide measure, and requires that they be authored by the attorney general and not by the Legislature. To the extent that AB 3034 provides otherwise, the former presiding justice elaborated, it violates the constitutional prohibition against amending Proposition 9, except by a vote of the people or as set forth in the initiative itself.
Proposition 9 allows lawmakers to amend the act without a public vote only “to further its purposes,” he noted. Dictating legislatively written language in place of having the attorney general write it, , is contrary to the purposes of the Political Reform Act, which was adopted in order “to promote impartiality and to eliminate conflicts of interest in the performance of governmental duties,” Scotland said.
The case is Howard Jarvis Taxpayers Association v. Bowen (Brandt), 11 S.O.S. 550.
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