The narrow, but potentially recurring and important, question we address in these writ proceedings is whether the California Constitution, as amended by the voters in 2010, allows the Legislature to identify blank bills with an assigned number but no substance (so-called "spot bills")
Prior to the 2010 amendments to the California Constitution, a two-thirds supermajority of the Legislature was required to pass an annual budget. (Cal.
Subdivision (d) of article IV, section 12 states: "No bill except the budget bill may contain more than one item of appropriation, and that for one certain, expressed purpose. Appropriations from the General Fund of the State, except appropriations for the public schools and appropriations in the budget bill and in other bills providing for appropriations related to the budget bill, are void unless passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring." (Language added by 2010 amend. in italics.)
Subdivision (e)(2) of article IV, section 12 further explains: "For purposes of this section, `other bills providing for appropriations related to the budget bill' shall consist only of bills identified as related to the budget in the budget bill passed by the Legislature."
In February 2012 there were 80 spot bills on the legislative docket (2011-2012 Reg. Sess.): Assembly Bills Nos. 1464, 1465, 1466, 1467, 1468, 1469, 1470, 1471, 1472, 1473, 1474, 1475, 1476, 1477, 1478, 1479, 1480, 1481, 1482, 1483, 1484, 1485, 1486, 1487, 1488, 1489, 1490, 1491, 1492, 1493, 1494, 1495, 1496, 1497, 1498, 1499, 1500, 1501, 1502, and 1503; and Senate Bills Nos. 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1018, 1019, 1020, 1021, 1022, 1023, 1024, 1025, 1026, 1027, 1028, 1029, 1030, 1031, 1032, 1033, 1034, 1035, 1036, 1037, 1038, 1039, 1040, 1041, 1042, and 1043. Each of these bills was assigned a number but was otherwise empty of content. Indeed, their purpose was to reserve a spot on the legislative calendar. Each blank bill contained the same place-saving 18 words: "It is the intent of the Legislature to enact statutory changes relating to the Budget Act of 2012." One of these blank bills is at the center of the current controversy — Assembly Bill No. 1499.
The Assembly Committee on Budget introduced Assembly Bill No. 1499 (2011-2012 Reg. Sess.) on January 10, 2012. It reiterated the language that appeared in each of the other spot bills: "The people of the State of California do enact as follows: [¶] SECTION 1. It is the intent of the Legislature to enact statutory changes relating to the Budget Act of 2012." (Assem. Bill No. 1499, supra, as introduced Jan. 10, 2012, italics omitted.) The Legislative Counsel's Digest states, in part: "Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no." (Legis. Counsel's Dig., Assem. Bill No. 1499, supra, as introduced Jan. 10, 2012.) It was read on
The budget bill, Assembly Bill No. 1464 (2011-2012 Reg. Sess.), was enacted on June 15, 2012, by a majority vote of the Legislature. (Stats. 2012, ch. 21, § 39.00; see Complete Bill Hist., Assem. Bill No. 1464, supra, <http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1451-1500/ab_1464_bill_20120827_history.html> [as of Jan. 18, 2013].) The budget bill states: "The Legislature hereby finds and declares that the following bills are other bills providing for appropriations related to the Budget Bill within the meaning of subdivision (e) of Section 12 of Article IV of the California Constitution: ... AB 1499 ...." (Stats. 2012, ch. 21, § 39.00.)
Ten days later the Legislature, again by majority vote, added substance to the otherwise empty Assembly Bill No. 1499 (2011-2012 Reg. Sess.). (Assem. Bill No. 1499, supra, as amended June 25, 2012.) The Legislative Counsel's Digest was amended to read, in part: "Appropriation: ... yes. Fiscal committee: ... yes." (Legis. Counsel's Dig., Assem. Bill No. 1499, supra, as amended June 25, 2012, italics omitted.) As of June 25, 2012, Assembly Bill No. 1499 read: "The people of the State of California do enact as follows:
The following day, June 26, it was passed from committee. And the next day, June 27, Assembly rules were suspended, the Senate amendments were concurred in, and the bill was enrolled and presented to the Governor, signed by the Governor, and chaptered by the Secretary of State. (Complete Bill Hist., Assem. Bill No. 1499 (2011-2012 Reg. Sess.) <http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1451-1500/ab_1499_bill_20120627_history.html> [as of Jan. 18, 2013]; Stats. 2012, ch. 30.)
As a result of the legislation, the Secretary of State was prepared to place Governor Brown's initiative to increase taxes first on the ballot for the November 2012 general election and identified as Proposition 30.
The superior court denied the Howard Jarvis Taxpayers Association and Jon Coupal's petition for a writ of mandate seeking an order to restore the ordering of ballot initiatives on the ballot prior to the enactment of Assembly Bill No. 1499 (2011-2012 Reg. Sess.). (Our Children, Our Future v. Bowen (Super. Ct. Sacramento County, 2012, No. 34-2012-80001194).) On July 9,
The Legislature urges us to dismiss the writ proceedings as moot because the petition does not present a justiciable controversy. Since it is now too late to grant petitioners the relief they seek, that is, the reordering of the ballot propositions on the November 6, 2012, ballots, the Legislature concludes there is no likelihood the instant dispute will ever recur and we should dismiss the petition without reaching the merits of the constitutional challenge. The Legislature fails to properly characterize the narrow, but dispositive, question before us. Properly understood, the constitutional issue we resolve is one that is "`likely to recur ... yet evade review'" and is "`of continuing public interest.'" (Howard Jarvis Taxpayers Assn. v. Bowen (2011) 192 Cal.App.4th 110, 120 [120 Cal.Rptr.3d 865] (Howard Jarvis I).) We therefore exercise our discretion to address the constitutionality of Assembly Bill No. 1499 (2011-2012 Reg. Sess.).
The issue is neither as broad as petitioners contend nor as narrow as the Legislature asserts. Petitioners would have us decide whether the $1,000 appropriation was a sham and whether the Legislature has violated article IV, section 12 by finding the amendment to the Elections Code reordering ballots is "`related to the budget.'" (Art. IV, § 12, subd. (e)(2).) But cognizant of the "appropriate role of the judiciary in a tripartite system of government" (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1213 [70 Cal.Rptr.2d 745] (Schabarum)), we need not decide either of these two issues in this case.
We telegraphed the dispositive constitutional inquiry at the top of our opinion. Put another way, the question is whether the Legislature violated the
As we explained in Schabarum, "The people, in their Constitution, may place restrictions upon the exercise of the legislative power by the Legislature but the courts may not do so without violating the fundamental separation of powers doctrine. Judicial application of clear and unequivocal constitutional restrictions on the Legislature's authority merely enforces the people's exercise of the right to place restrictions upon the Legislature. On the other hand, legislative restraint imposed through judicial interpretation of less than unequivocal language would inevitably lead to inappropriate judicial interference with the prerogatives of a coordinate branch of government. Accordingly, the only judicial standard commensurate with the separation of powers doctrine is one of strict construction to ensure that restrictions on the Legislature are in fact imposed by the people rather than by the courts in the guise of interpretation." (Schabarum, supra, 60 Cal.App.4th at p. 1218.)
We turn then, as we must, to the words of the initiative that fundamentally changed the budgetary process. As we quoted above, article IV, section 12, subdivision (d) allows the Legislature to pass a budget by a simple majority rather than a two-thirds supermajority. In the background analysis in the voter information guide, the Legislative Analyst explained: "Certain budget actions, such as a decision to change the services that a state department is mandated to provide, require changing state law. These changes often are included in `trailer bills' that accompany passage of the budget each year." (Voter Information Guide, Gen. Elec. (Nov. 2, 2010) analysis of Prop. 25 by the Legis. Analyst, p. 52.) According to the Legislative Analyst, the lower vote requirement prescribed by Proposition 25 would also apply to trailer bills. (Voter Information Guide, supra, at p. 53.)
The Legislature argues that it complied with these constitutional requirements by appropriating $1,000 to the Secretary of State to pay for expenses, by finding that Assembly Bill No. 1499 (2011-2012 Reg. Sess.) is related to the budget, and by identifying Assembly Bill No. 1499 at the time the budget bill was passed and designating it by number in the budget bill. The problem, of course, is that Assembly Bill No. 1499 was nothing but a number, a placeholder, an empty vessel at the time the budget bill was passed. What was later to become the substantive content of Assembly Bill No. 1499 was not contained in the bill at the time it was passed. Did the electorate intend to allow the Legislature to amend spot bills after the budget bill is passed by a mere majority vote as urgency legislation? The answer resides in the plain language of article IV, section 12, subdivision (e)(2).
First is the commonsense notion that if the electorate intended to allow the Legislature to enact trailer bills by a majority vote after passing the budget bill, subdivision (e)(2) of article IV, section 12 is superfluous. Subdivision (d) of article IV, section 12 requires the subject matter of the trailer bill to be budget related. But subdivision (e)(2) further limits the trailer bills that can be enacted as urgency legislation by a simple majority vote by compelling the Legislature to identify those bills in the budget bill itself. If, as the Legislature suggests, it can comply with subdivision (e)(2) with a mere reference to blank bills, then subdivision (e)(2) does not perform any function of limiting the bills to those related to the budget at the time the budget is passed, but instead sets up a shell game whereby the Legislature can identify nothing more than a bill number in the budget bill, pass it, and only then add substance to the bill. We will not presume the electorate intended subdivision (e)(2) to create such a transparent loophole in the budgeting process.
Second, the meanings of the two key words, "identified" and "bills," used in article IV, section 12, subdivision (e)(2) belie the interpretation suggested by the Legislature. According to the Encarta World English Dictionary (1999)
Moreover, the term "spot bill" is a misnomer because a spot bill does not meet the definition of a bill at all. According to the Legislature in its "Overview of Legislative Process" (<http://www.leginfo.ca.gov/bil2lawx.html> [as of Jan. 18, 2013]), "All legislation begins as an idea or concept. Ideas and concepts can come from a variety of sources. The process begins when a Senator or Assembly Member decides to author a bill." A spot bill, however, does not contain an idea or concept. Rather, it reserves a spot for a later-conceived idea or concept, thereby defeating the electorate's intent to pinpoint the idea or concept at the time the budget is passed. Similarly, according to Merriam-Webster's Collegiate Dictionary (11th ed. 2006) at page 121 and the American Heritage Dictionary, supra, at page 178, a bill is a "draft of a law presented to a legislature for enactment" and a "draft of a proposed law presented for approval to a legislative body," respectively. A spot bill contains no "draft of a law." Very simply, a designated number does not constitute a bill within the meaning of article IV, section 12, subdivision (e)(2).
Petitioners' prayer for relief is narrowly tailored to a request for a writ of mandate ordering respondent Secretary of State to reorder the propositions on the November ballot, relief we can no longer provide.
The petition for a writ of mandate therefore is denied. Petitioners shall recover costs in this original proceeding. (Cal. Rules of Court, rule 8.936(a), (b)(1).)
Nicholson, J., and Butz, J., concurred.