Professional Documents
Culture Documents
Respondents.
Pa2;e
VERIFICATION............................................................................................
INTRODUCTION .........................................................................................
CONCLUSION ............................................................................................
Pa2;e
CASES
Amador Valley Joint Union High Sch. Dist. v. Bd. Of Equalization
(1978) 22 Cal.3d 208 ....................................................................... passim
Brosnahan v. Brown
(1982) 32 Cal.3d 236................................................................................
Calfarm Ins. Coo v. Deukmejian
(1989) 48 Cal.3d 805 ..............................................................................
Delaney v. Lowery
(1944) 25 Cal.2d 561. ............................................................................. 20
Gerken v. Fair Political Practices Com.
(1993) 6 Cal.4th 707 ............................................................................... 25
Green Vo Obledo
(1981) 29 Cal.3d 126 ................................................................................ 2
Harbor v. Deukmejian
(1987) 43 Cal.3d 1078 ............................................................................
Hustedt v. Workers Compo Appeals Bd.
(1981) 30 Cal.3d 329........................................................................ 17
INS v. Chadha
(1983) 462 U. S. 919......................................................................... passim
111
Kasler Lockyer
v.
Legislature v.
Nogues Douglass
v.
Raven Deukmejian
Vo
Wood Riley
v.
STATUTES
Cal. Civ. Code ~ 12.....................................................................................
~ 1085...................................................................... 1 , 2
........................................................ .....
OTHER AUTHORITIES
S. Const. , art. I , ~ 3..................................................................................
art. II , ~ 2................................................................................. 13
art. V........................................................................................ 13
~ 3.................................................................. passim
THE PARTIES
144- 145 (" (W)here the question is one of public right and the
object of the mandamus is to procure the enforcement of a public
duty, the relator need not show that he has any legal or special
interest in the result , since it is sufficient that he is interested as a
citizen in having the laws executed and the duty in question
enforced" ), internal quotation and citation omitted.
Respondent Gregory Schmidt (" Schmidt" ) is the Secretary of the
California State Senate. Schmidt is sued in his official capacity.
It is Schmidt's legal duty, among other things , to certify that a
bill has been duly passed by the California Senate , to engross and
enroll bills that have been duly passed by the California Senate
and to present bills that have been passed by the California
Senate and California Assembly in identical form to the
Governor for the Governor s approval or veto.
Respondent E. Dotson Wilson (" Wilson ) is the Chief Clerk of
the California State Assembly. Wilson is sued in his official
capacity. It is Wilson s legal duty, among other things , to certify
that a bill has been duly passed by the California Assembly, to
engross and enroll bills that have been duly passed by the
California Assembly, and to present bills that have been passed
by the California Senate and California Assembly in identical
form to the Governor for the Governor s approval or veto.
FACTS
CLAIMS ASSERTED
RELIEF SOUGHT
By ?fY.A.~ O. J?~
William A. Norris
ATTORNEYS FOR PETITIONER
CHARLES YOUNG
VERIFICATION
?r~QI/7~
William A. Norris
'" , "'
INTRODUCTION
Mirroring the United States Constitution , the California Constitution
vests the State s sovereign power to govern in three branches: the
legislative power in the State Legislature , the executive power in the
Governor , and the judicial power in the State courts. The California
Constitution also distinguishes between a revision and an amendment of its
provisions , setting forth different procedures for accomplishing each.
Several times , this Court has decided whether a particular measure passed
as an amendment to the Constitution is , in fact , an unconstitutional revision.
This Petition presents the same question.
Recently, in Strauss v. Horton (2009) 46 Cal.4th 364 , this Court
carefully reviewed the revision/amendment dichotomy and all the Court'
prior decisions analyzing the distinction between these two methods of
altering the California Constitution.
(Id. at pp. 412- 440. ) After analyzing
the prior cases , the Court explained that a change to the Constitution is a
revision , not merely an amendment , if it amounts to "' a change in the basic
plan of the California government '" that is a change in (the)
fundamental (governmental) structure or the foundational powers of its
branches. (Id. at p. 438 , quoting Legislature v. Eu
(1991) 54 Cal.3d 492
508- 509 , emphasis omitted; see also Strauss, supra 46 Cal.4th at pp. 427
430- 445 452.
Article IV , section 12(d) and article XIII A , section 3 , of the
California Constitution require two- thirds of each House of the Legislature
- a supermajority, as opposed to the usual simple majority - to pass every
State budget or tax increase. They were expressly adopted as amendments
to the Constitution , not as revisions. Therefore , the question here is
whether the supermajority requirements of these provisions constitute "'
change in (the) fundamental (governmental) structure or the foundational
powers of its branches. (Strauss , supra 46 Cal.4th at p. 438 , quoting
Legislature v. Eu, supra 54 Cal.3d at pp. 508- 509 , emphasis omitted.
They do. As such , they are unconstitutional revisions.
Article IV , section 12(d) and article XIII A , section 3 , alter the
fundamental structure and the foundational power of both the legislative
and executive branches of California s government. As to the legislative
branch , they transfer the power of the majority of the Legislature to a
minority of one- third plus one of either House , giving such a minority the
ability to block any budget and any tax increase bill despite the fact that the
bill has the support of a majority of both Houses. As to the executive
branch , these supermajority provisions render the Governor s veto power
virtually meaningless when it comes to bills to adopt budgets or increase
taxes. With these provisions in place , a minority of either House of the
Legislature can block any such bill that has been approved by a majority,
but not a supermajority, of both Houses from ever reaching the Governor
desk unless the bill has received the required two- thirds vote of both
Houses , which , of course , is the number of votes necessary to override a
veto. Thus , the supermajority provisions substantially diminish the power
of the executive branch to participate in the decision-making process
concerning the State budget and tax increases.
It is difficult to imagine more fundamental changes to the
foundational power and structure of the legislative and executive branches.
The supermajority requirements of article IV , section 12(d) and article XIII
, section 3 , obliterate constitutionally-vested powers of coordinate
branches of government and , thus , shift the balance of power between those
branches , altering the Constitution s carefully-conceived system of checks
and balances. Indeed , these provisions are not meaningfully different , and
are at least as " devastating " to the preexisting governmental scheme , as the
purported amendment which this Court determined was a revision to the
Constitution in Raven , supra 52 Cal.3d at p. 352. That purported
amendment required California courts to defer to the United States
Supreme Court' s interpretations of the federal Constitution in construing
certain rights of criminal defendants set forth in the California Constitution.
(Id. at pp. 342- 346, 350. ) Just as the purported amendment in Raven
altered the fundamental structure of government by " vest(ing) a critical
portion of state judicial power " in the federal courts
(ido at p. 355), article
, section 12(d) and article XIII A , section 3 , alter the fundamental
structure of government by vesting a critical portion of the State legislative
power in a minority of either House of the Legislature , and by eroding the
executive s veto power over budget and tax increase legislation. As such
article IV , section 12(d), and article XIII A , section 3 , are unconstitutional
revisions masquerading as amendments.
THE SUPERMAJORITY REQUIREMENTS OF ARTICLE IV
SECTION 12(d), AND ARTICLE XIII A , SECTION 3 , ARE
UNCONSTITUTIONAL REVISIONS TO THE STATE
CONSTITUTION.
Majority Rule Is Foundational To The Structure And
Power Of The Legislative Branch Of Our Government.
house of origin , which shall enter the objections in the journal and
proceed to reconsider it. If each house then passes the bill by rollcall
vote entered in the journal , two- thirds of the membership concurring,
it becomes a statute.
(Cal. Const. , art. IV , ~ 10.
As the United States Supreme Court explained in Chadha the
Framers were acutely conscious " that the Presentment Clause , along with
the bicameral requirement would serve essential constitutional functions
(462 U. S. at p. 951) by allowing the passage oflegislation only after it has
proceeded through " a step- by-step, deliberate and deliberative process (id.
at p. 959) that was " at p.
finely wrought and exhaustively considered"
(ido
951). That process includes " passage by a majority of both Houses and
presentment to the (executive), " who may approve the bill , or veto and
return it with his objections , thereby requiring a two- thirds majority of both
Houses to overcome the veto. (Id. at p. 958 , footnote omitted.
The Presentment Clauses of both the federal and California
Constitutions thus establish a system of checks and balances whereby the
Legislature and the Executive deliberate with each other and moderate each
other s powers. " The bicameral requirement , the Presentment Clauses , the
President' s veto and Congress ' power to override a veto were intended to
erect enduring checks on each Branch and to protect the people from the
improvident exercise of power by mandating certain prescribed steps.
(Chadha , supra 492 U. S. at p. 957. To preserve those checks , and
maintain the separation of powers , the carefully defined limits on the power
of each Branch must not be eroded. (Id. at p. 958. ) Indeed , the
requirements of presentment and the executive veto were considered "
imperative " that the " draftsmen took special pains to assure that these
requirements could not be circumvented. (Id. at p. 947.
).)
2 After
Chadha the Supreme Court summarily affirmed a D.
Circuit decision striking down a two House legislative override of
executive action. (Process Gas Consumers Group v. Consumer Energy
Council of America (1983) 463 U. S. 1216.
); ""'
445- 446; see id. at pp. 447- 448 (declining to pass on the wisdom of the
policy behind the line item veto; the only issue was whether the law was in
accord with the "' finely wrought' procedure commanded by the
Constitution ), quoting Chadha, supra 462 U. S. at p. 951.) 3
Similarly, this Court has held that the Legislature may not make
appropriations " in such way as to circumvent the veto power of the
Governor. (Wood v. Riley
(1923) 192 Cal. 293 , 306; see also Mistretta
United States
(1989) 488 U. S. 361 , 383 (provision oflaw that " prevents the
Thus , both the United States Supreme Court and this Court have
recognized that the Executive s power to veto or not veto legislation is a
foundational power critical to the basic structure of our government and to
the system of checks and balances on which that government is based.
Article IV , Section 12(d), And Article XIII A , Section 3
Fundamentally Alter California s Basic Governmental
Structure By Eliminating The Legislature s Foundational
Power Of Majority Rule and Eroding The Executive
Foundational Veto Authority In The Critical Areas Of
Taxation and Budget- Making.
.taxation. It has long been recognized that the power to tax and to allocate
monies is at the heart of a legislature s constitutional authority. (See , e.
The Federalist No. 30 (Alexander Hamilton) (" Money is , with propriety,
considered as the vital principle of the body politic; as that which sustains
its life and motion , and enables it to perform its most essential functions.
complete power , therefore , to procure a regular and adequate supply of it
as far as the resources of the community will permit, may be regarded as an
indispensable ingredient in every constitution. ); The Federalist No. 33
(Alexander Hamilton) (" the power to make laws to collect revenues is a
legislative power ) In defending the Congress ' power to raise taxes under
the proposed United States Constitution , Alexander Hamilton sagely
predicted that in times of crisis substantial restrictions on a legislature
561 , 568. ) Reinforcing this theme , this Court has described the
Legislature s power to enact a budget as " fundamental." (White Vo Davis
(2003) 30 Cal.4th 528 , 558; see also County of Sonoma v. Commission on
State Mandates (2000) 84 Cal.App.4th 1264 , 1280- 1281 (describing the
power of the Legislature as " supreme " in tax matters and describing the
Legislature s powers regarding the budget as " considerable
The minority empowerment of the supermajority provisions of
article IV , section 12(d), and article XIII A , section 3 , also comes at the
expense of the Governor , whose role in the lawmaking process in the key
areas of taxation and budget-making is substantially diminished. Before
the two-thirds requirements for passing a budget or raising taxes were
adopted , the Governor could either approve such bills that had been passed
by majority of the Legislature or veto them and require a two-thirds vote of
the Legislature to override the veto. Thus , the Governor had significant
power over such bills. Now that the two- thirds requirements have been
passed , the Governor no longer has the option to either approve or veto any
budget or tax increase bill that has the support of a majority, but not a
supermajority, of the Legislature. Those bills never even reach the
Governor s desk , because a minority one- third plus one of either the Senate
or Assembly can block them from ever getting through the Legislature.
The only budget and tax-increase bills that now reach the Governor are
those that have received a two- thirds vote of both Houses. But that , of
course, is the number of votes necessary to override any gubernatorial veto.
Thus , while the Governor retains a technical veto power over budget and
tax- increase bills passed by two- thirds of the Legislature , that power is
virtually meaningless. By crippling the executive veto power , the
supermajority provisions of article IV, section 12(d), and article XIII A
section 3 , considerably weaken the power of the executive brancl). to
participate in the decision-making process concerning the State budget and
tax increases.
The supermajority provisions thus ineluctably alter the careful
system of separation of powers and checks and balances mandated by the
Constitution. These provisions shift control over whether budgetary and
tax increase measures will pass to the hands of a minority that is " beyond
the system of checks and balances which heretofore has characterized our
governmental plan. (McFadden v. Jordan
(1948) 32 Cal.2d 330 348.
They prevent the executive and legislative branches " from accomplishing
(their) constitutionally assigned functions " and so are an unconstitutional
subversion of the separation of powers principle. (Mistretta, supra 488
S. at p. 383 (executive branch), citation and quotations omitted; see
Hustedt, supra 30 Cal.3d at p. 338 (Legislature violates separation of
powers doctrine when it " defeat ( s) or materially impair( s) the exercise of
(another branch' s) functions
In short , when it comes to the critical areas of budget and taxation
article IV , section 12(d), and article XIII A , section 3 , have eviscerated the
California Constitution and the vital powers it provides to the legislative
majority and the Governor. As this Court held in Raven such a
debate. Finally, the rule does not apply in the House of Representatives. In
short , historical acceptance of the Senate s cloture rule does not provide
support for the two- thirds rules in question here.
'"
contemplates a similar qualitative change " because " (i)n essence and effect
(it) would vest all judicial interpretive power as to fundamental criminal
defense rights , in the United States Supreme Court. (Raven , supra
Cal.3d at p. 352 , quoting Amador, supra 22 Cal.3d at p. 223 , internal
quotation omitted. ) The Raven Court concluded that " (fJrom a qualitative
standpoint , the effect of Proposition 115 is devastating" to our preexisting
governmental plan. (Raven, supra 52 Cal.3d at p. 352.
As discussed above , the two- thirds requirements of article IV
section 12(d), and article XIII A , section 3 , vest a critical portion of both
the State legislative power and the State executive power in a minority of
either the State Senate or the State Assembly, with respect to the vital areas
of budgeting and taxation. From a qualitative standpoint, these
supermajority provisions " closely resemble() Amador hypothetical
provision vesting all judicial power in the Legislature , a provision (this
Court) deemed would achieve a constitutional revision. (Raven , supra
Ca1.3d at p. 355. ) Like Proposition 115 , they have a far-reaching impact on
the " basic governmental plan or framework embodied in the preexisting
provisions of the California Constitution " and thus effect change beyond
the scope of a constitutional amendment. (Strauss , supra 46 Ca1.4th at p.
441 , emphasis omitted. ) And like Proposition 115 , article IV , section
12(d), and article XIII A , section 3 , effect a change so profound and
devastating " to the structure of our government and the foundational
powers of two of its branches that they constitute revisions of the
Constitution , not mere amendments. (Raven , supra 52 Cal.3d at p. 352.
III. ALTHOUGH IT DEALS WITH ARTICLE XIII A AND
RESTRICTION OF TAXING AUTHORITY AMADOR
enactment vesting all judicial power in the Legislature , and held that
article XIII A fairly may be deemed a constitutional amendment , not a
revision. (Amador, supra 22 Cal.3d at p. 228.
In Amador however , the petitioners did not challenge and this Court
did not address section 3 of article XIII A , which requires two- thirds of the
," ," ,"
State Legislature to pass any tax increase , and is the only portion of Article
III A at issue here. (Amador, supra 22 Cal.3d at p. 220 (advising that the
Court' s opinion is limited to the specific constitutional issues resolved; " our
summary description and interpretation of the article and of the
implementing legislation and regulations do not preclude subsequent
challenges to the specific meaning or validity of those enactments.
Rather , the petitioners in Amador challenged sections I and 2 of
article XIII A , which grant power to the Legislature to allocate revenues
from real property taxation among various local agencies. (Amador, supra
22 Cal.3d at p. 220. ) The petitioners argued that these provisions interfere
with home rule , or the ability of local government to control and finance
local affairs without undue interference by the Legislature.
(Id. at p. 224-
225. ) This Court rejected that argument , finding that the relevant
provisions " are no more threatening to home rule than () preexisting
constitutional limitations " on local taxing authority, and , therefore , do not
disturb our basic governmental plan.
(Id. at pp. 225- 227.
Thus Amador principal holding was that article XIII A' s transfer
to the State Legislature of the authority of local government districts to
apportion revenues from taxes on real property within their jurisdictions
, its expansion of the Legislature s control of the power to distribute real
property tax revenues at the expense of subordinate local governments
was a permissible amendment to the Constitution, not a revision. That
holding had nothing to do with article XIII A' s requirement in section 3
that two- thirds of the State Legislature approve any kind of tax increase , or
with the effect of that supermajority requirement on the power to govern
7 Article XIII A
, section I , provides that property taxes shall be
collected by the counties and apportioned according to law to the districts
within the counties. " (Cat Const. , art. XIII A emphasis added. ) At
the time this provision was enacted , there was no state law which provided
for distribution of property tax revenues. (Voter Pamp. , Proposed Stats.
and Amends. to Cal. Const. with arguments to voters , Primary Elec. (June
, 1978), analysis by Legislative Analyst.) Subsequently, the Legislature
passed implementing legislation setting the formulae pursuant to which
county auditors must allocate property tax revenues to various agencies
within their boundaries. (Amador, supra 22 Cal.3d at pp. 226- 227. ) The
Amador Court found that " (i)n general (these formulae) aim at allocating
these funds on a pro rata basis without imposing any condition whatever
regarding their ultimate use (Id.
" and thus do not interfere with home rule.
at p. 227.
distributed by the Constitution to any of the three coordinate branches of
the State government.
The only other holding of consequence in Amador involved section
4 of article XIII A , which restricts local government authority to impose
special taxes " by requiring that such taxes be approved by two- thirds of
the local voters. The petitioners in Amador argued that this provision
result(s) in a change from a ' republican ' form of government (i.
lawmaking by elected representatives) to a ' democratic ' governmental plan
(i. , lawmaking directly by the people). (Amador, supra 22 Cal.3d at p.
227. ) Not surprisingly, this Court rejected that argument.
The Amador Court reasoned that the requirement that two- thirds of
the electorate approve local special taxes " does not change our basic
governmental plan" because in all other areas the authority of local
government to enact laws and regulations remained unimpaired. (Amador
supra 22 Cal.3d at pp. 227- 228. ) Because the Court was dealing with local
power to levy taxes , rather than the State Legislature , and a requirement
of approval by a supermajority of the local electorate , not a supermajority
of the State Legislature , the Court had no cause to consider issues such as
the effect of a two- thirds requirement on the balance of power between
coordinate branches of government and our system of checks and balances.
N or did the Court have reason to consider that the taxing authority is the
most critical of the Legislature s powers. (See pp. 18- , above. ) By
contrast , even before passage of article XIII A , local governments had to
receive specific approval from the Legislature before levying new taxes.
(Voter Pamp. , Proposed Stats. and Amends. to Cal. Const. with arguments
to voters , Primary Elec. (June 6 , 1978), analysis by Legislative Analyst.)
Article XIII A merely added an additional restriction on their already
limited taxing authority.
Petitioner here challenges only that portion of article XIII A that
provides for a two- thirds majority vote by the Legislature to approve
increases in taxation at the state level , i.e. , section 3; he does not challenge
the provisions at issue in Amador which restricted local taxing authority,
and unlike section 3 , did not impair the State Legislature s constitutional
power to legislate by the foundational principle of majority rule or the
Governor s constitutional veto power.
Thus Amador erects no obstacle to the relief sought by this Petition.
For the reasons set forth above , the supermajority requirement of section 3
unlike the other provisions of article XIII A addressed in Amador effects
an impermissible revision of the Constitution.
CONCLUSION
For the reasons stated above , Petitioner respectfully urges this Court
to hold that Article IV , section 12(d) and Article XIII A , section 3 , are
unconstitutional revisions to the California Constitution , and to grant the
relief sought in this Petition.
Respectfully submitted
Dated: July 9 2009 AKIN GUMP STRAUSS HAUER &
FELD LLP
William A. Norris
Rex S. Heinke
L. Rachel Helyar
Orly Degani
Christopher Blanchard
Julian W. Park
By /V~O'h~
William A. Norris
ATTORNEYS FOR PETITIONER
CERTIFICATE OF COMPLIANCE
(Cal. Rules of Court , Rule 8. 204(c))
By )1/~ o.n~
William A. Norris
ATTORNEYS FOR PETITIONERS
PROOF OF SERVICE
STATE OF CALIFORNIA , COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles , State of California. I am over
the age of 18 and not a party to the within action; my business address is: 2029
Century Park East , Suite 2400 , Los Angeles , California 90067. On July 9 , 2009 , I
PETITION FOR
served the foregoing document described as:
Rose Shushanyan
IPrint Name of Person Executing Proof) (;",,"=J