Almost 17 months ago, a 5-1 majority of the Supreme Court removed from the 2014 ballot a proposition the Legislature had drafted to seek the electorate’s views on amending the U.S. Constitution to overturn the U.S. Supreme Court’s Citizens United decision. Today, a 6-1 court in Howard Jarvis Taxpayers Association v. Padilla clears the way for that proposition to appear on the 2016 ballot. (However, the Legislature will apparently need to pass another bill to put the proposition before the voters in November; the 2014 legislation, which became law without Governor Brown’s approval, concerned only that year’s ballot.)
The court uses a lot of paper on this case. There are 5 opinions taking up 141 pages. The majority opinion is authored by Justice Kathryn Werdegar and is signed by Chief Justice Tani Cantil-Sakauye and Justices Carol Corrigan, Mariano-Florentino Cuéllar, and Leondra Kruger. The Chief Justice, Justice Corrigan, and Justice Goodwin Liu all separately write concurring opinions. Justice Ming Chin dissents.
This is the majority’s holding: “(1) as a matter of state law, the Legislature has authority to conduct investigations by reasonable means to inform the exercise of its other powers; (2) among those other powers are the power to petition for national constitutional conventions, ratify federal constitutional amendments, and call on Congress and other states to exercise their own federal article V powers; (3) although neither constitutional text nor judicial precedent provide definitive answers to the question, long-standing historical practice among the states demonstrates a common understanding that legislatures may formally consult with and seek nonbinding input from their constituents on matters relevant to the federal constitutional amendment process; (4) nothing in the state Constitution prohibits the use of advisory questions to inform the Legislature’s exercise of its article V-related powers; and (5) applying deferential review, Proposition 49 is reasonably related to the exercise of those powers and thus constitutional.”
The history-filled majority opinion notes that “[t]he seeds of a practice of consultation, the nonbinding solicitation of the people’s views to inform legislative judgments on significant matters, were planted in England in the 17th century.” However, it limits its decision to ballot measures that relate to the Legislature’s powers under article V of the U.S. Constitution, which provides the process for amending that constitution. The court leaves for another day whether the Legislature could use an advisory ballot measure “in support of other powers not implicated here.”
The question the majority leaves unanswered is a point of dispute between the Chief Justice and Justice Corrigan on the one hand and Justice Liu on the other. (Justice Liu openly disagreed with the Chief Justice during oral argument of the case.) The Chief Justice’s separate opinion argues that the majority decision should not be viewed “as calling into question the validity of all types of statewide and local advisory ballot measures, even those completely unrelated to any proposed amendment to the federal Constitution.” Justice Corrigan agrees in her concurring opinion. Justice Liu, however, believes that “such wide-ranging use of advisory ballot measures is not authorized by our state Constitution and would potentially reshape the way electoral politics and policymaking are conducted in California. We should not take liberties with the careful structure of republican democracy that the framers of our Constitution have built and bequeathed to us.”
Justice Liu’s opinion is more in line with the Governor’s position. Although stating that “Citizens United was wrongly decided and grossly underestimated the corrupting influence of unchecked money on our democratic institutions,” Governor Brown did not sign the legislation putting the proposition on the ballot because “we should not make it a habit to clutter our ballots with nonbinding measures as citizens rightfully assume that their votes are meant to have legal effect.” Letting the legislation become law without his signature was his “signal” that he was “not inclined to repeat this practice of seeking advisory opinions from the voters.”
Justice Chin is the only justice who voted to remove the proposition from the 2014 ballot and who now wants to keep it off the 2016 ballot as well. (Now-retired Justice Marvin Baxter and Justices Werdegar, Corrigan, and Liu joined Justice Chin in 2014. The Chief Justice dissented. Justices Cuéllar and Kruger had not yet joined the court.) Today, he writes that “[p]lacing advisory measures on the ballot — a right denied even to the people . . . — is no part of the legislative function and does not come within either the Legislature’s lawmaking or ancillary powers.”
