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Howard Jarvis Taxpayers Association v. Bowen

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Howard Jarvis Taxpayers Association v. Bowen
Seal of California.svg.png
California Third District Court of Appeal
Holding
The Attorney General of California, not the California State Legislature, is to write ballot titles for measures referred to the ballot by the legislature.
Judges
Author of opinion:
Arthur Scotland
Case opinions
In Howard Jarvis Taxpayers Association v. Bowen, the California Third District Court of Appeal sided with the Howard Jarvis Taxpayers Association in its January 27, 2011 ruling, which said that in order to "promote impartiality and eliminate conflicts of interest," ballot titles of legislative referrals must be written by the Attorney General of California, not the California State Legislature.[1]

The court's ruling says that when the California State Legislature took it upon itself to dictate what the ballot language for Proposition 1A should be, it violated the provisions of 1974's Proposition 9:

"...to the extent it specified the ballot label, title and summary to be used, the bill negated the Political Reform Act's requirement that the official summary of the bill be prepared by the Attorney General in addition to the ballot label and title that are prepared by the Attorney General. As we will explain, this ad hoc amendment of the Political Reform Act did not further the purposes of the Act and was not approved by the voters. Thus, it was invalid. Simply stated, the Legislature cannot dictate the ballot label, title and official summary for a statewide measure unless the Legislature obtains approval of the electorate to do so prior to placement of the measure on the ballot."

The decision was written by Arthur Scotland, with Harry Hull and George Nicholson concurring.[2]

Background

In 2008, the California State Legislature referred Proposition 1A, the "Safe, Reliable, High-Speed Passenger Train Bond Act for the 21st Century" to the ballot.

In the statute it passed to refer Proposition 1A to the ballot -- Stats. 2008, ch. 267, § 11, subd. (f)(1) & (2), pp. 15-16 -- the state legislature specified the ballot label, title and summary that the official voter guide and ballot should use, and specifically precluded the Attorney General of California from revising the language other than to include a financial impact statement.

Proposition 1A's ballot label

When the state legislature voted by a 2/3rds vote to put Proposition 1A on the ballot, the language of the referring statute said that, "[n]otwithstanding any other provision of law, all ballots of the November 4, 2008, general election shall have printed thereon as the ballot label for Proposition 1A" the following:

SAFE, RELIABLE HIGH-SPEED PASSENGER TRAIN BOND ACT. 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?'" (Stats. 2008, ch. 267, § 11, subd. (c), pp. 15-16.)

Prevention of Attorney General

The state legislature's enabling statute then went on to say:

[n]otwithstanding Sections 13247 [limitation on total number of words in the ballot statement, and title, and financial impact summary] and 13281 of the Elections Code [former statute specifying the Attorney General shall prepare the ballot label and title] or "any other provision of law," the above-quoted ballot title and summary "shall be the only language" included on the ballot as the ballot label, title and summary for Proposition 1A, and "the Attorney General shall not supplement, subtract from, or otherwise revise that language," [emphasis added] except for providing a financial impact summary. (Stats. 2008, ch. 267, § 11, subds. (d) & (f)(2), p. 16.)

Lawsuit filed

HJTA went to court prior to the November 4, 2008 election and asked for a writ of mandate that would direct the California Secretary of State 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."

The HJTA's complaint said that the state legislature violated Section 4 of Article II of the California Constitution by "attempting to influence the election with its own one-sided Ballot Label, Title, and Summary." According to the HJTA, "the Legislature, as author and proponent of Proposition 1A, has a conflict of interest in preparing an impartial Ballot Label, Title, and Summary," and "the Label, Title, and Summary it prepared for Proposition 1A are, in fact, not impartial," but rather "resemble campaign literature, containing nonfactual opinion and statements that are false or misleading."

The legislature argued against the court issuing the requested writ of mandate, saying that:

"...the authority to designate the author of the ballot materials of a measure placed by the Legislature before the voters rests with the Legislature, and the Legislature's assignment of this responsibility to itself was completely within its discretion."

The trial court, at the behest of HJTA's lawsuit, made some minor modifications in the ballot title of Proposition 1A but did not agree with HJTA's request that the Attorney General be asked to provide impartial ballot language.

Appeal

Proposition 1A won narrowly, and HJTA appealed the decision of the superior court. The state legislature's attorneys attempted to have the appeal thrown out on the grounds that the election was over. The appellate court, however, took the case, noting that the legal point at issue -- whether the state legislature as opposed to the Attorney General can write ballot language -- was increasingly relevant, since Proposition 1A was not the first time that the state legislature had decreed that it, not the Attorney General, should write the ballot language for the propositions it refers to the ballot.

The appellate court declined to rule on whether the state legislature had violated the California Constitution by acting as they did. HJTA had asked for a ruling based on the constitution. The court's decision says:

According to appellants, rather than being neutral, the label, title and summary prepared by the Legislature for the High-Speed Train Bond Act had a "promotional tenor"—"more than inform," they "advocated." Claiming the Legislature used the label, title and summary to "lavish praise on its measure in language that virtually mirrored the argument in favor of the proposition," appellants protest that "advocacy of an interested party appeared on the ballot masquerading as objective voter guidance." This, they contend, violated article II of the California Constitution, which says in part that the Legislature shall provide for "free elections" (§ 3) and "prohibit improper practices that affect elections" (§ 4). In appellants' view, the "expressed public policy of sections 3 and 4" is "elections must be free from government manipulation and other improper practices designed to affect the vote."

Instead of ruling based on the constitutional implications, the court opted to base its ruling on their view that the state legislature had violated Proposition 9, the Political Reform Act.

Implications and reactions

The ruling has two immediate effects:

  • It gives newly-elected attorney general Kamala Harris the authority to write the ballot language for the 2012 Water Bond, which the legislature had decreed should be described on the ballot as the Safe, Clean, and Reliable Drinking Water Supply Act of 2012.
  • It means that as the legislature considers whether to refer a tax increase to the 2011 ballot, the legislature will have in the back of its collective mind that it will not be able to write the ballot language for the tax increase.

External links

References