Hjta-bowen Reply Brief

C060441

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’ REPLY 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

INTRODUCTION The Legislature’s brief contains scarcely any response to the principal thrust of this appeal, which is that the Legislature violated its constitutional duty to “provide for ... free elections” (Cal. Const., art. II, § 3) and to “prohibit improper practices that affect elections” (id., art. II, § 4) when, as the proponent of a measure on the ballot, it required its own propaganda to be printed as the “impartial” information that voters saw for that measure. Although the Legislature’s brief denies that article II, sections 3 and 4 require it to protect elections from manipulation, it never offers a better explanation of those sections. While much of the Legislature’s brief is spent attacking arguments appellants did not make, one of those attacks is worth defending because in it the Legislature has acknowledged another legal basis for holding that it may not write the impartial ballot materials for its own measures. This Reply Brief will address the Legislature’s points in the order they were presented, and along the way correct those accusations that misrepresent our theory of the case. I THE APPEAL SHOULD NOT BE DISMISSED FOR MOOTNESS, OR FOR SEEKING DIFFERENT RELIEF Under the heading “The Appeal Should be Dismissed as Moot,” the Legislature actually makes two arguments for dismissing this appeal. First it argues that the action is moot because the election has passed. Respondent’s Brief (“RB”) at 3. In addition, the Legislature contends that “Appellants now seek relief never requested below, as they ask this Court to ‘prohibit[] the Legislature from writing the impartial descriptions and analyses of its own ballot measures.’” RB at 4. Appellants do not seek new relief. The relief appellants seek in this

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court is the same relief sought in the Superior Court. Appellants’ petition in the Superior Court alleged: “Removing from the ballot the only impartial descriptions and summary that voters generally see, and substituting advocacy in their place, written by the author and proponent of the measure, constitutes “improper practices that affect elections,” which the Legislature is constitutionally prohibited from doing.” CT at 6:4. The petition prayed “That a peremptory writ of mandate issue under seal of this Court authorizing and directing respondent Debra Bowen to request an impartial Ballot Label, Title and Summary from the Attorney General, and to use them in lieu of the Ballot Label, Title and Summary furnished by the Legislature.” CT at 9:10. The appeal asks this Court to find, as alleged, that “the Legislature is constitutionally prohibited from doing” what it did, and that the Superior Court erred by not granting the prayed-for writ of mandate. Regarding mootness, it is true appellants have not alleged that issuing the writ today would benefit them, or alter the outcome of the November 4, 2008, election. However, appellants traced for this Court the Legislature’s recent and increasing election strategy of supplanting the Attorney General’s impartial analyses with its own Ballot Label, Title, and Summary designed to influence the vote on the measures it sponsors. In light of this evidence, appellants argued: “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.” AOB at 4. California law supports this request. In Huening v. Eu (1991) 231 Cal.App.3d 766, the proponent of a statewide initiative sued to require the Secretary of State to delete certain language from the opponents’ ballot 2

argument. The Superior Court ordered the requested deletion. Opponents appealed. After the election was held, respondent argued that the appeal should be dismissed as moot since it was too late to grant the relief sought on appeal; i.e., reinstatement of the deleted language. This Court disagreed, and decided the case on its merits: “Opponents’ chief contentions relate to ... issues which are likely to recur in future elections. Because of the short period between the publication of ballot pamphlets and the election, it is unlikely such contentions can be reviewed before the election. Therefore, we shall consider opponents’ challenge.” Id. at 770. Huening relied on the well-established rule that “[e]ven though the relief requested is no longer available, review may be appropriate if the contentions raised are of general public interest ‘and are likely to occur in future elections in a manner evasive of timely appellate review.’” Id. at 770; Gebert v. Patterson (1986) 186 Cal.App.3d 868, 872; Unger v. Superior Court (1984) 37 Cal.3d 612, 614; Ferrara v. Belanger (1976) 18 Cal.3d 253, 259. The rule applies in this case where appellants have shown a growing trend that is likely to recur in future elections, yet evade review due to the short deadline for printing ballots and the fact that elections cannot be halted just because an appeal is pending. Moreover, this challenge is based on constitutional grounds that are of continuing public interest. II APPELLANTS AGREE THAT THE LEGISLATURE MAY ACT WHEN NOT LIMITED BY THE CONSTITUTION, BUT HERE THE LEGISLATURE IS LIMITED BY THE CONSTITUTION The Legislature devotes a separate argument in its brief to the elementary principle that the Legislature possesses all legislative power not withheld by the constitution. It insinuates that appellants attack this principle. We do not. We contend rather that the constitution prohibits the Legislature from “attempt[ing] to influence the resolution of issues which our Constitution 3

leaves to the ‘free election’ of the people.” Stanson v. Mott (1976) 17 Cal.3d 206, 218 (citations omitted). The Legislature admits that it may not take actions that are “expressly or by necessary implication denied to it by the Constitution.” RB at 7 (quoting State Personnel Bd. v. Dept. of Personnel Admin. (2005) 37 Cal.4th 512, 523). Here the constitution requires the Legislature to “provide for ... free elections” (Cal. Const., art. II, § 3) and to “prohibit improper practices that affect elections” (id., art. II, § 4). By necessary implication, the Legislature may not itself engage in improper practices that affect the freedom of elections. III APPELLANTS AGREE THAT THE LEGISLATURE MAY AMEND OR SUPERSEDE ELECTION PROCEDURES, BUT HERE THE LEGISLATURE COMMANDEERED THE BALLOT ITSELF, TO INFLUENCE THE VOTE The Legislature’s third argument, like the first two, attributes to appellants an argument we do not make. It says, “Appellants complain because previously enacted statutes establishing general procedures for submitting legislative measures to the electors were superseded here. ... In objecting to the Legislature’s decision to enact new procedures superseding those previously adopted, appellants apparently fail to recognize that ‘one legislative body cannot limit or restrict its own power or that of subsequent Legislatures.’” RB at 9 (quoting In re Collie (1952) 38 Cal.2d 396, 398). Appellants have not argued that the procedures for submitting measures to the electorate may not be temporarily or permanently changed by the Legislature. For example, if timing was really an issue as suggested in the Legislature’s brief (RB at 3), it could have shortened the Attorney General’s time for preparing the ballot materials or extended the deadline for printing and mailing sample ballots. The specific legislative action challenged by this lawsuit was not 4

procedural in nature, but substantive. By requiring the Secretary of State to insert the proponent’s message in place of the impartial ballot descriptions, the Legislature was changing not the procedure for preparing impartial descriptions, but the descriptions themselves. And it did so “attempt[ing] to influence the resolution of issues which our Constitution leaves to the ‘free election’ of the people” (Stanson v. Mott, 17 Cal.3d at 218) in violation of its duty to “provide for ... free elections” (Cal. Const., art. II, § 3) and to “prohibit improper practices that affect elections” (id., art. II, § 4). This the Legislature may not do. IV IN SECTIONS 3 AND 4 OF ARTICLE II, THE PEOPLE MADE THE LEGISLATURE INITIALLY, BUT NOT ULTIMATELY RESPONSIBLE FOR ENSURING THAT ELECTIONS ARE FREE OF GOVERNMENT MANIPULATION In its fourth argument, the Legislature contends that sections 3 and 4 of article II “fully entrust the supervision of elections to the Legislature.” RB at 11. Because these sections grant to the Legislature the power to provide for free elections and prohibit improper practices that affect elections, it argues, it therefore lies within the Legislature’s sole “discretion” how to conduct elections and what to place on the ballot and in the voters guide. RB at 13. The Legislature’s position in this section of its brief contradicts the admonition it repeats elsewhere that the state constitution does not grant powers to the Legislature, but limits them:

“[W]e do not look to the

constitution to determine whether the Legislature is authorized to do an act, but only to see if it is prohibited.” RB at 7 (quoting California School Boards Assn. v. State (2009) 171 Cal.App.4th 1183, 1206). Sections 2 and 3 must be viewed then, not as a grant of power “entrusting” elections to the Legislature without oversight, but rather as duties imposed upon the Legislature to ensure that elections are free and not 5

improperly influenced. Moreover, as with all acts of the Legislature, while the constitution may initially place the responsibility to act with the Legislature, it is ultimately the job of the courts to determine whether, in acting, the Legislature has violated public or private rights guaranteed by the constitution. Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 176-180 [2 L.Ed. 60, 73-74]; 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 56, pp. 97-98. It is in this section of its brief that the Legislature dismisses appellants’ argument that sections 3 and 4 prohibit the Legislature from requiring that its own sales pitch be printed as the “impartial” descriptions of a ballot measure. The Legislature’s main criticism is that “Appellants cite no relevant authority supporting their position that Sections 3 and 4 of Article II preclude the Legislature from ... specifying ballot language for the measures it submits to the electors.” RB at 12. The criticism is unfair because appellants admitted from the start that this is a case of first impression. The very first sentence of appellants’ opening brief reads, “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.” The Legislature offers no other meaning for sections 3 and 4, except to say that section 3 (guaranteeing “free elections”) could also “signify, among other things, without cost.” RB at 12, n. 6. It may equally be said, therefore, that the Legislature cites no authority for its view that sections 3 and 4 do not preclude it from specifying how the “impartial” sections of the ballot will read for measures it submits to the voters. Appellants maintain that this new and growing trend abuses legislative 6

authority in order to do what no other proponent of a ballot measure could do; that is, seize the substance of the ballot to communicate directly with voters in the voting booth, disguising the message as impartial voter guidance. In the absence of precedent, this Court should uphold the expressed public policy of sections 3 and 4, which is that elections must be free from government manipulation and other improper practices designed to affect the vote. The purpose of the ballot label, title and summary “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; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243. Transforming these materials from a source of objective information to an additional argument in favor of the measure, but without the warning that it represents “the opinions of the authors” (Gov. Code § 88002), does mislead and impose upon voters trusting that the material under the heading “Official Title and Summary” has been prepared by someone “unbiased by ... a particular viewpoint.” City of Sacramento v. State of California (1984) 156 Cal.App.3d 182, 192. Just as the Attorney General would be presumed biased and therefore disqualified from preparing the title and summary if he were the proponent of a measure (see Elec. Code § 9003), so too the Legislature must be presumed biased when it is the proponent of a measure, and should be disqualified by sections 3 and 4 of article II from preparing the title and summary. The California Supreme Court observed that any legislative body “inevitably will ‘take sides’ on [its own] ballot measure and not be ‘neutral’ with respect to its adoption.” Vargas v. City of Salinas (2009) 46 Cal.4th 1, 36. And in fact, the Legislature concedes on page 18 of its brief that it “[u]nquestionably ... favored the passage of the bond measure, as it was adopted ... by a two-thirds 7

vote of each house.” Appellants’ opening brief details how the Legislature expanded the usual word limits for these elements of the ballot so that it could lavish praise on its measure in language that virtually mirrored the argument in favor of the proposition. AOB at 7-9. Nowhere in its brief does the Legislature contest appellants’ accusation that the materials it wrote were biased and argumentative.

It argues only that appellants have cited no authority

prohibiting what it did. Hopefully, that is what this Court will provide. V APPELLANTS HAVE NOT ARGUED THAT THE CONSTITUTIONAL PROCEDURES FOR INITIATIVES AND REFERENDA APPLY TO LEGISLATIVE BOND MEASURES The Legislature’s fifth argument again attributes to appellants an argument we do not make. The Legislature cites article II, section 10, which requires the Attorney General to prepare a title and summary for voter initiatives and referenda, then says “appellants argue that the procedures applicable to initiative and referendum measures must also apply to bond measures.” RB at 20. Untrue. Appellants’ case rests on sections 3 and 4, not section 10. The Legislature then proceeds to argue that, because the constitution charges the Attorney General with preparing a title and summary for initiatives and referenda, “but is silent as to the process for obtaining voter approval of legislative measures” (RB at 21), the Legislature is free to do what it wants. The problem with this argument is that the constitution is not silent. It requires the Legislature to “provide for ... free elections” (art. II, § 3) and to “prohibit improper practices that affect elections” (id., art. II, § 4). VI APPELLANTS HAVE NOT ARGUED THAT ONLY THE ATTORNEY GENERAL CAN DRAFT NEUTRAL LANGUAGE 8

The Legislature’s sixth argument, as usual, attributes to appellants an argument we do not make. It says, “Appellants assert that the electors need to have reliable information, and then, without any supporting authority, leap to the conclusion that only the Attorney General ... is qualified to provide this information.” RB at 22. Appellants never said that and, in fact, our opening brief states, “Appellants ... 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.” AOB at 4.1 The Legislature drags out its battle with this straw man by then arguing that even the Attorney General can be biased if he personally likes or dislikes a measure. As an illustration it cites Lungren v. Superior Court (1996) 48 Cal.App.4th 435. But in Lungren, although the Attorney General personally favored an initiative and had so stated in public forums, the Court of Appeal found that in describing the initiative, he “added nothing [and] omitted nothing” that would have reflected his personal view of the measure. Id. at 441. Unlike the facts in Lungren, the Legislature in the case at bar does not simply have an opinion about the measure, it was the author and sponsor of the measure. If the Attorney General were the author or sponsor of a measure, he would be disqualified from writing the ballot materials, and Legislative Counsel would take over. Elec. Code § 9003. Lungren is further distinguishable in that the Attorney General is governed by statute in the performance of his duties. He must “give a true and impartial statement of the purpose of the measure in such language that [it]

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Unless noted otherwise, all emphasis is added.

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shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.” Lungren, 48 Cal.App.4th at 440, n.1; Elec. Code § 9051. The Legislature takes the position in this case that no law requires it to be impartial or nonargumentative, and it does not dispute that the materials it wrote for the High Speed Rail Bond were in fact partial and argumentative. If anything, then, Lungren illustrates that there is no justification for sidelining the Attorney General, since he is constrained by statute and has a proven track record of writing impartial ballot labels, titles and summaries, even when he may have a personal opinion about a measure. The only conceivable reason for prohibiting him from writing the label, title and summary for the High Speed Rail Bond and requiring use of the Legislature’s message instead was to exert influence on the voters to favor the measure’s passage–an improper purpose that affects the freedom of the election and is constitutionally prohibited. VII IF THE LEGISLATURE CAN, AS IT DID IN THIS CASE, LIMIT JUDICIAL REVIEW THROUGH A SUPERSEDING STATUTE, THEN THE STATUTORY RIGHT TO JUDICIAL REVIEW DOES NOT ENSURE VOTER PROTECTION In its seventh argument, the Legislature claims that prohibiting it from writing the ballot label, title and summary for its own measures is unnecessary because the availability of judicial review ensures that voters will not be misled. It cites, as proof that judicial review is always available, Elections Code section 9092 and Government Code section 88006. RB at 29. This very case, however, demonstrates the flaw in the Legislature’s argument. Both Elections Code section 9092 and Government Code 88006 were purportedly suspended by the Legislature for purposes of reviewing the High Speed Rail Bond. Sections 9092 and 88006 provide for a 20-day public examination 10

period, during which any voter may seek a writ of mandate requiring any copy to be amended or deleted from the ballot pamphlet if the copy is, among other things, “inconsistent with the requirements of [the Government Code] or the Elections Code.” Gov. Code § 88006 (see also Elec. Code § 9092). AB 3034, however, which placed the High Speed Rail Bond on the ballot, provided: “Notwithstanding ... any other provision of law, the public shall be permitted to examine the condensed statement of the ballot title for not more than eight days. Any voter may seek a writ of mandate for the purpose of requiring any statement of the ballot title, or portion thereof, to be amended or deleted only within that eight-day period.”2 CT at 100:38. If the Legislature can shrink the window of judicial review from 20 days to eight days, then it can also reduce it to one day, or a few hours, which would essentially make review impossible. As the Legislature repeatedly claims in its brief: “the California Constitution does not preclude the Legislature from choosing to supersede prior statutory procedures and enacting a statute establishing different procedures exclusively for [its] bond measure.” RB at 8-9. Moreover, the Legislature has taken the position in this case that the level of judicial scrutiny is significantly more deferential for copy it writes than it would be had the Attorney General authored the copy. Elections Code section 9051 requires the Attorney General to “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.” Because this is a requirement of the Elections

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As a practical matter, the Legislature timed the passage of AB 3034 so that a lawsuit could not have exceeded the 8-day period in any event, due to the deadline for printing and mailing absentee ballots. AB 3034 was passed on August 26, 2008 (CT at 121) and the printing deadline was September 3, 2008 (the eighth day). CT at 204:5; RT at 2:16.

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Code, if the Attorney General’s copy is not impartial, or is argumentative, it can be amended or deleted under Government Code section 88006 as “inconsistent with the requirements of ... the Elections Code.” Zaremberg v. Superior Court (2004) 115 Cal.App.4th 111, 116; Lungren v. Superior Court, 48 Cal.App.4th at 440 and n.1; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 22 Cal.3d at 243. However, Elections Code section 9051 imposes the “impartial and nonargumentative” standard only on the Attorney General, or on Legislative Counsel if he relieves the Attorney General (Elec. Code § 9003). The Legislature has made its view abundantly clear in this case that, unless it amends section 9051 to apply the “impartial and nonargumentative” standard to itself, neither that test nor any form of heightened scrutiny applies to it. See RB at 47-48. The Superior Court agreed and 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. Thus, judicial review of the Legislature’s wording, the degree of which, and even the availability of which, are subject to the whim of the Legislature, provides no real protection for the integrity of elections if this Court rules that the constitution allows the Legislature to write the “impartial” ballot materials for its own measures. VIII THE LEGISLATURE MAY NOT SUPERSEDE THE PROVISION OF THE POLITICAL REFORM ACT WHICH REQUIRES THAT OFFICIAL SUMMARIES BE PREPARED BY THE ATTORNEY GENERAL In its eighth argument, the Legislature turns to the Political Reform Act to bolster its previous argument that the availability of judicial review obviates appellants’ prayer that the Legislature may not write impartial summaries of its own measures under article II, sections 3 and 4. 12

According to this eighth argument, even though the Legislature did in this case limit the availability of judicial review in both the text of AB 3034 and the timing of AB 3034, it wasn’t really allowed to do so (because the California electorate codified for themselves a right to judicial review in the Political Reform Act, which the Legislature cannot unilaterally amend or suspend) and that should give this Court comfort for future cases that the voters are sufficiently protected by the availability of judicial review. RB at 31. For reasons stated in the preceding section, the Court should regard this as a hollow promise. The eighth argument is important, however, because it tacitly concedes that section 88002 of the Political Reform Act provides another, independent ground for holding that the Legislature may not write the impartial summaries of its own measures. The Political Reform Act was added to the Government Code by Proposition 9, an initiative passed by the voters in June, 1974. As the Legislature concedes, it may not amend or suspend the provisions of the Political Reform Act without either voter approval or compliance with the Act (which the Legislature admits it did not do). RB at 32-33; Cal. Const., art. II, § 10(c). In Huening v. Eu (1991) 231 Cal.App.3d 766, this Court held that “Chapter 8 of the Political Reform Act (Gov. Code § 88000 et seq.) governs the content of a ballot pamphlet.” Id. at 777. Section 88002 of the Act states, “[t]he ballot pamphlet shall contain as to each state measure to be voted upon, the following in the order set forth in this section: ... (2) The official summary prepared by the Attorney General.” The Legislature argues that it did not amend or violate section 88002 when it prohibited the Attorney General from preparing any summary of the High Speed Rail Bond, and ordered the Secretary of State to replace the 13

Attorney General’s summary with the Legislature’s own sales pitch. RB at 31. Appellants disagree. In Huening, this Court held that under a long line of precedent, a prohibited “amendment” is any change, deletion or addition to, the provisions of the people’s initiative.

231 Cal.App.3d at 777.

According to the

Legislature, that definition has been narrowed by subsequent case law. RB at 34. But the cases the Legislature cites do not so hold. The Legislature cites People v. Cooper (2002) 27 Cal.4th 38 as an example of the Supreme Court approving a legislative modification of an initiative without voter approval because the modification was not an “amendment” in that it “did not ‘circumvent the intent of the electorate.’” RB at 35 (quoting Cooper, 27 Cal.4th at 48). Even if Cooper so held (which it didn’t), it would not assist the Legislature because here the Legislature did circumvent the intent of the electorate. The electorate expressly stated its intent in section 81002 of the Political Reform Act: “The people enact this title to accomplish the following purposes: ... (d) The state ballot pamphlet should be converted into a useful document so that voters will not be entirely dependent on paid advertising for information regarding state measures.” Who pays for advertising? The proponents and opponents of measures. What were the expanded label, title and summary that the Legislature wrote and required for the High Speed Rail Bond? They were essentially advertising, written by the proponent, which replaced the “useful” materials that ordinarily provide voters a disinterested factual summary of the measure. Turning to Cooper, the initiative at issue there added section 190 to the Penal Code to increase the penalties for first and second degree murder. It also contained this reference to the existing statutes governing credits for good behavior: “The provisions of Article 2.5 (commencing with Section 2930) of 14

Chapter 7 of Title 1 of Part 3 of the Penal Code shall apply to reduce any minimum term of 25 or 15 years in a state prison imposed pursuant to this section, but such person shall not otherwise be released on parole prior to such time.” The legislative amendment attacked in Cooper was not to the initiative, but to one of the statutes governing credits for good behavior. 27 Cal.4th at 43. And the effect of the amendment, which limited credit for pre-sentencing good behavior, was to increase a convict’s prison term–which the Court found “did not circumvent the intent of the electorate.” Contrary to the Legislature’s claim, had the amendment been to the initiative, it would have required voter approval. In Cooper’s words, “A statute enacted by voter initiative may be changed only with the approval of the electorate unless the initiative measure itself permits amendment or repeal without voter approval.” 27 Cal.4th at 44. The Legislature also cites Knight v. Superior Court (2005) 128 Cal.App.4th 14, where this Court rejected a theory that the Legislature’s enactment of Family Code section 297.5 (granting rights to domestic partnerships) was a prohibited amendment to Proposition 22, the Defense of Marriage Initiative. But again, the Legislature did not amend Proposition 22, which is a different section–section 308.5–of the Family Code. Proposition 22 in its entirety states: “Only marriage between a man and a woman is valid or recognized in California.” The Legislature’s domestic partnership bill did not give same-sex couples a right to marry, nor did it “add to, or take away from, Proposition 22.” Finally, the Legislature cites Calif. Teachers Assn. v. Hayes (1992) 5 Cal.App.4th 1513, where this Court upheld a statute that was alleged to violate Proposition 98. Again, however, the statute did not amend or suspend Proposition 98. 15

Proposition 98 set a minimum funding level for “the moneys to be applied by the State for the support of school districts and community college districts.” Cal. Const., art. XVI, § 8(b). The quoted phrase is not defined by Proposition 98. The challenged statute included, in the programs to be guaranteed a minimum funding level, developmental services for special needs students. Because these developmental services are not performed directly by the school district, but are contracted out, the plaintiffs argued that funding for such services were not “moneys to be applied by the State for the support of school districts.” This Court disagreed, finding that the recipients of such services were students of the school districts, that the services were for the support of the school districts, and that nothing in Proposition 98 transferred from the State to the school districts authority to determine how the State may support school districts. Calif. Teachers Assn. v. Hayes, 5 Cal.App.4th at 1532-33. At bottom, then, Calif. Teachers Assn. v. Hayes simply interpreted Proposition 98. It did not deal with an amendment to, or suspension of, the initiative passed by the voters. In contrast to these cases, the legislative act in the case at bar directly touches the initiative passed by the voters, suspending its operation and temporarily amending the law it enacted. Voter-enacted section 88002 states, “[t]he ballot pamphlet shall contain as to each state measure to be voted upon, the following in the order set forth in this section: ... (2) The official summary prepared by the Attorney General.”

AB 3034 provides, however,

“Notwithstanding any other provision of law [which thus touches section 88002], the Secretary of State shall use the following as the ballot title and summary for Proposition 1A: [Here appears the Legislature’s own advertisement.] ... Notwithstanding any other provision of law, the language in paragraph 1 shall be the only language included in the ballot title and 16

summary, and the Attorney General shall not supplement, subtract from, or otherwise revise that language.” CT at 99:26. Because the Legislature did not obtain voter approval for this suspension and amendment of the Political Reform Act, it was not constitutionally permitted to prepare the official summary of its own measure. IX APPELLANTS DID NOT SAY THIS WAS THE FIRST TIME THE LEGISLATURE WROTE ITS OWN BALLOT MATERIALS The Legislature devotes a separate argument to an attempt at making appellants look uninformed about past elections. According to the Legislature, “Appellants claim that this decision by the Legislature to amend the effect of existing statutes, and establish new procedures for submitting this measure to the voters, is ‘unprecedented’ ... [but] this is a practice the Legislature has employed and continues to employ in appropriate cases.” RB at 45. Here’s what appellants really said: “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.” Appellants’ brief then goes on to detail the recent history of this strategy. X IF THIS COURT ALLOWS THE LEGISLATURE TO CONTINUE WRITING THE “IMPARTIAL” DESCRIPTIONS OF ITS OWN MEASURES, THEN HEIGHTENED SCRUTINY SHOULD APPLY Courts “must ... enforce the provisions of our Constitution and ‘may not lightly disregard or blink at ... a clear constitutional mandate.’” Silicon Valley Taxpayers Assn. v. Santa Clara County Open Space Auth. (2008) 44 Cal.4th 431, 448; State Personnel Bd. v. Dept. of Personnel Admin. (2005) 37 Cal.4th 512, 523. Appellants maintain that article II, sections 3 and 4 are clear constitutional mandates. The Legislature has a duty to “provide for ... free 17

elections” (art. II, § 3) and to “prohibit improper practices that affect elections” (art. II, § 4). It violates those mandates when, as the proponent of a measure, it requires its own propaganda to be printed in the ballot disguised as “impartial” voter assistance. Appellants further maintain that prohibiting the Attorney General from preparing a summary “notwithstanding” the Political Reform Act requirement that ballots include a summary by the Attorney General, and requiring the ballot to contain something else instead, amends the Act–an initiative of the people–without their approval, in violation of article II, section 10. If this Court nevertheless decides to allow this new strategy of the Legislature to continue growing, it should at least require trial courts to apply a heightened level of scrutiny when reviewing the “impartial” materials the Legislature has written, to ensure that they are indeed impartial. The Legislature criticizes the cases cited in appellants’ opening brief because, although they involved ballot wording, they were based on authorities other than sections 3 or 4 of article II (e.g., the equal protection clause). True. But why did courts apply heightened scrutiny in those cases? Nothing in the text of those other authorities required it. Rather, it is because the right to vote in fair elections is a liberty interest guaranteed by the constitution. When constitutional guarantees of liberty are at stake, courts review statutes with heightened scrutiny: “[A] strict scrutiny standard is typically applied in cases that impact a fundamental liberty interest.” In re E.S. (2009) 173 Cal.App.4th 1131, 1142; Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 939-940. Few rights affect liberty as much as 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. To protect the right to vote, the constitution and the Political Reform Act 18

prohibits the Legislature from writing the ballot summaries for its own measures. But if it does not, then courts should at least closely scrutinize those summaries for impartiality. CONCLUSION For these reasons, this Court should reverse the Superior Court and hold that a writ of mandate should have issued directing that an impartial ballot label, title and summary be prepared by the Attorney General or, if he was unable, then another appropriate disinterested party. Short of that, the Superior /// /// ///

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Court should have applied a heightened scrutiny to determine whether the “impartial” materials being required by the Legislature were indeed impartial. DATED: August 21, 2009.

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 5,663 words. DATED: August 21, 2009. ______________________ Timothy A. Bittle Counsel for Appellants

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