May 25, 2006

California Supreme Court Decides Proposition 60 "Separate Vote" Case

"We granted review to address an issue of first impression: the proper interpretation of California Constitution, article XVIII, section 1 (article XVIII, section 1), which requires in its second sentence that when the Legislature proposes an amendment of the state Constitution, “[e]ach amendment shall be so prepared and submitted that it can be voted on separately.”

We conclude, as did the Court of Appeal below, and consistently with our provision’s language and history and more than a century of out-of-state decisions construing the essentially identical provisions of nearly 30 other state constitutions, that the separate-vote provision is a limitation upon legislative power to submit constitutional amendments to the voters.

We disagree, however, with the Court of Appeal below, concerning the applicable test for determining whether, in a given case, the Legislature’s submission of constitutional changes in a single measure violates article XVIII, section 1. In addressing that question, the Court of Appeal followed a minority rule that recently was reinvigorated by Armatta v. Kitzhaber (Or. 1998) 959 P.2d 49 (Armatta) — a decision in which the Oregon Supreme Court construed its state’s separate-vote provision as establishing a test different from and stricter than the traditional test employed by courts under a related constitutional provision also found in most state constitutions — the “single subject rule” (see Cal. Const., art. II, § 8, subd. (d) & art. IV, § 9). Unlike the Oregon court and a few other courts that have followed Armatta under their respective state constitutions, we find no basis in the history of the California Constitution for such a conclusion, and hence we shall follow the approach that is, and has been, the majority rule for nearly 130 years: the separate-vote provision should be construed consistently with its kindred provision, the single subject provision.

So construing the separate-vote provision of article XVIII, section 1, we conclude that the Legislature’s proposed submission, in a single constitutional amendment, of two changes to the state Constitution that are not germane to a common theme, purpose, or subject, violated the constitutional separate-vote requirement. Accordingly, we affirm this aspect of the judgment rendered by the Court of Appeal, although for reasons different from those relied upon by that court.

We also address the question of remedy. The Court of Appeal, by a two-to-one vote, ordered the Secretary of State to separate the two proposed constitutional changes at issue in this matter into two measures for submission to the voters. When ruling upon this matter in the weeks preceding the November 2004 general election (and only days before the deadline for the printing of ballot materials), we declined to disturb the Court of Appeal’s order, and the voters of this state subsequently adopted each separated constitutional amendment. Although we conclude that the Court of Appeal erred by ordering bifurcation, we find it unnecessary and inappropriate to invalidate either of these separately submitted and approved constitutional amendments."

Thanks to Richard Winger for the heads up.

Posted by Randy Riddle at May 25, 2006 01:26 PM