Becerra v. Super. Ct. ( 2018 )

Filed 11/17/17; Supreme Court publication order 12/20/17
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
XAVIER BECERRA, as Attorney General, etc., C085670
Petitioner, (Super. Ct. No.
34201780002643)
v.
THE SUPERIOR COURT OF SACRAMENTO
COUNTY,
Respondent;
TRAVIS ALLEN,
Real Party in Interest.
Petitioner the Attorney General of the State of California seeks a peremptory writ
of mandate directing respondent superior court to vacate its order requiring that he
rescind the circulating title and summary he prepared for a proposed 2018 ballot initiative
measure to repeal portions of Senate Bill 1, the Road Repair and Accountability Act of
2017, and replace it with the title and summary approved by the court.1
1 Respondent court entered judgment on its order on October 6, 2017, thereby granting
the petition of real party in interest Travis Allen. The judgment is appealable by the
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Respondent court ruled the circulating materials prepared by the Attorney General
are confusing, misleading, and likely to create prejudice against the proposed measure.
After the Attorney General filed his writ petition in this court, and initial
opposition was filed by the real party in interest Travis Allen, we issued an order to
preserve our jurisdiction, staying respondent court’s ruling and any proceedings thereon,
pending further order of this court. We also informed the parties that we were
considering the issuance of a peremptory writ in the first instance, and invited further
opposition. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.) The
parties urged the court to resolve the issues on an expedited basis through the Attorney
General’s writ petition.
Having reviewed the petition and opposition thereto, we conclude the language
prepared by the Attorney General—contrary to the findings of the respondent court—
does not mislead the voters or create prejudice against the measure. Consequently, there
is no legal or factual basis for respondent court’s interference with the Attorney General’s
exercise of his statutory duties. We shall therefore issue the preemptory writ of mandate
and continue our stay order pending finality of this decision.
BACKGROUND
Because they are largely undisputed, we take these facts chiefly from respondent
court’s September 25, 2017 ruling on submitted matter, upon which its judgment is
based.
In April of 2017, the Legislature enacted Senate Bill 1, the Road Repair and
Accountability Act of 2017 (hereafter SB 1). Among other things, SB 1 imposes various
taxes and fees to increase funding for road maintenance, mass transit, and other
Attorney General, and he has appealed it. However, given the immediate time constraints
for circulating a proposed initiative for signature, the Attorney General’s remedy by
appeal is inadequate. (See Yes on 25, Citizens for an On-Time Budget v. Superior Court
(2010) 189 Cal.App.4th 1445, 1449, fn. 2 (hereafter Yes on 25).)
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transportation programs. In enacting SB 1, the Legislature found that the state faces a
$59 billion shortfall in funding needed to adequately maintain the existing state and local
roadway system over the next 10 years. The Legislature also found that taxes and fees
dedicated to maintenance of the system had not been increased in more than 20 years.
SB 1 was enacted as urgency legislation, and took effect immediately upon its approval
by the Governor, on April 28, 2017.
Beginning on November 1, 2017, SB 1 is expected to raise over $52.4 billion in
new transportation funding over 10 years. The key sources of new transportation funding
consist of a $0.12 per gallon increase of the excise tax on gasoline; a $0.20 per gallon
increase of the excise tax on diesel fuel; a 4 percent increase of the sales tax on diesel
fuel; a new annual “transportation improvement” registration fee on all vehicles, ranging
from $25 to $175 (based on the vehicle’s market value); and a new “road improvement
fee” of $100 for registration/renewal of zero-emission vehicles model year 2020 or later.
SB 1 designates the new funding to be used for road maintenance and
rehabilitation, transit improvements, and other transportation purposes and programs.
According to the Legislative Analyst’s Office, SB 1 is expected to distribute $2.6 billion
in new funding in 2017-18, as follows: $742 million for repair and maintenance of state
highways and local roads; $550 million for transit; $450 million for congested/trade
corridors; $400 million for repair and maintenance of state bridges and culverts; $200
million for local partnership road repair and maintenance projects; $100 million for
bicycle and pedestrian projects; $71 million for state parks and agricultural programs; and
$66 million for other transportation-related programs. These new taxes and fees will
adjust upward annually for inflation.
SB 1 also creates a number of new programs and funds to distribute the funds
(including the Road Maintenance and Rehabilitation Program, the Congested Corridors
Program, and the Advance Mitigation Program); provides for the repayment from the
general fund of outstanding transportation loans totaling $706 million; establishes new
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10-year performance targets for the state highway program; repeals portions of the Tribal
Compact Assets Securitization Act; requires the California Department of Transportation
(Caltrans) to develop a plan to increase the dollar value of contracts and procurements
awarded to small businesses, disadvantaged business enterprises, and disabled veteran
business enterprises; requires the Department of Motor Vehicles to confirm, prior to
registration/renewal of certain heavy diesel-fueled vehicles, that the vehicle is compliant
with applicable air pollution control requirements; and creates a “useful life” period for
commercial trucks, during which truck owners will not be required to replace or modify
the vehicle’s engine and emission control systems.
Finally, SB 1 includes new “accountability” provisions, including the creation of
an “Independent Office of Audits and Investigations,” with an appointed director to be
known as the “Inspector General,” to ensure Caltrans makes efficient, effective, and
financially responsible transportation decisions, and spends funds consistent with
applicable standards, practices, and requirements.
The month following the enactment of SB 1, Allen, an Orange County
Assemblymember, filed with the Office of the Attorney General a ballot initiative
(numbered 17-0004), seeking to repeal many of the provisions of SB 1, including the new
taxes and fees it imposed. While it does not attempt to repeal SB 1 in its entirety, the 32-
page proposal repeals some statutory sections, amends other sections, and adds still other
statutory sections. It proposes changes to the Government Code, the Streets and
Highways Code, the Health and Safety Code, the Public Utilities Code, the Revenue and
Taxation Code, and the Vehicle Code.
As relevant to this proceeding, Allen then requested the Attorney General to
prepare a circulating title and summary, for use in connection with the gathering of
signatures for placing the initiative on the ballot. (Elec. Code, § 9001, subd. (a) [“Before
the circulation of an initiative or referendum petition for signatures, the text of the
proposed measure shall be submitted to the Attorney General with a written request that a
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circulating title and summary of the chief purpose and points of the proposed measure be
prepared . . .”].)
After requesting and receiving from the Legislative Analyst’s Office a written
estimate of the net fiscal impact of the proposed initiative so that it may be included in
the circulating title and summary (see Elec. Code, § 9005), the Attorney General
submitted the following circulating title and summary:
“ELIMINATES RECENTLY ENACTED ROAD REPAIR AND
TRANSPORTATION FUNDING BY REPEALING REVENUES DEDICATED
FOR THOSE PURPOSES. INITIATIVE STATUTE. Eliminates recently enacted
state and local transportation funding for repair and maintenance of streets, highways,
bridges, safety projects, and public transportation by repealing portions of the tax on
gasoline ($0.12 per gallon) and diesel fuel ($0.20 per gallon), sales and excise taxes on
diesel fuel (4% per gallon), vehicle registration fees ($25-$175, depending on vehicle
value), and $100 zero-emission vehicle fee. Eliminates Independent Office of Audits and
Investigations, which is responsible for ensuring accountability in the use of revenue for
transportation projects. Summary of estimate by Legislative Analyst and Director of
Finance of fiscal impact on state and local government: Reduced annual state
transportation revenues of $2.9 billion in 2018-19, increasing to $4.9 billion annually
by 2020-21. These revenues would otherwise primarily support state highway
maintenance and rehabilitation, local streets and roads, and mass transit. (17-
0004).”
Dissatisfied with this text, Allen filed a verified petition for writ of mandate and
declaratory relief, alleging that the Attorney General’s circulating title and summary is
false, argumentative and misleading, and does not provide a true and impartial statement
of the chief purposes and points of the measure, mainly by “omitting the words ‘tax’ and
‘fee’ from the title.” He asked that the Attorney General be ordered to adopt a revised
title and summary that “fairly and accurately describes the initiative.”
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Following a hearing,2 respondent court issued a ruling on submitted matter, in
which it granted Allen’s petition and issued a preemptory writ of mandate commanding
the Attorney General to rescind his circulating title and summary and replace it with the
following language:
“REPEALS RECENTLY-ENACTED GAS AND DIESEL TAXES AND
VEHICLE REGISTRATION FEES. ELIMINATES ROAD REPAIR AND
TRANSPORTATION PROGRAMS FUNDED BY THESE TAXES AND FEES.
INITIATIVE STATUTE. Eliminates recently enacted state and local transportation
funding for repair and maintenance of streets, highways, bridges, safety projects, and
public transportation by repealing recently-enacted taxes on gasoline ($0.12 per gallon)
and diesel fuel ($0.20 per gallon), sales and excise taxes on diesel fuel (4% per gallon),
vehicle registration fees ($25-$175), and $100 zero-emission vehicle fee. Eliminates
newly-established Independent Office of Audits and Investigations, which is responsible
for ensuring accountability in the use of revenue for transportation projects. Summary of
estimate by Legislative Analyst and Director of Finance of fiscal impact on state and
local government: Reduced annual state transportation revenues of $2.9 billion in
2018-19, increasing to $4.9 billion annually by 2020-21. These revenues would
otherwise primarily support state highway maintenance and rehabilitation, local
streets and roads, and mass transit. (17-0004).”
2 Before the hearing, respondent court issued a tentative ruling ordering the Attorney
General to be prepared at the hearing to discuss alternative language for the title and
summary. In response to the directive, the Attorney General offered some alternative
language at the hearing, which respondent court also rejected on the same grounds as it
had rejected the first title and summary proposed by the Attorney General. For the
purposes of this analysis, we do not discuss the alternative language prepared by the
Attorney General at respondent court’s direction.
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The ruling was subsequently reduced to a judgment, prepared by Allen. On the
same date, the Attorney General filed a petition for writ of mandate in this court, seeking
to overturn respondent court’s order.
DISCUSSION
The Legislature has conferred upon the Attorney General the task of preparing, in
no more than 100 words, an impartial title and summary for each initiative measure
submitted to the voters. (Elec. Code, §§ 9004, 9051; undesignated statutory provisions
refer to the Elections Code.) These preelection materials must reasonably inform the
voters of the character and purpose of the proposed measure. (Horneff v. City & County
of San Francisco (2003) 110 Cal.App.4th 814, 820.) Section 9004, subdivision (a) gives
to the Attorney General the job of “prepar[ing] a circulating title and summary of the
chief purposes and points of the proposed measure,” and section 9051, subdivision (c)
states, in so doing, the Attorney General shall “give a true and impartial statement of the
purpose of the measure in such language that the . . . title and summary shall neither be
an argument, nor be likely to create prejudice, for or against the proposed measure.” (See
§ 9004, subd (a) [the same standards apply to a circulating title and summary as to a
ballot title and summary].) “The main purpose of these requirements is to avoid
misleading the public with inaccurate information.” (Amador Valley Joint Union High
Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243 (Amador Valley).)
Implicit in these guidelines is that the Attorney General exercises judgment and
discretion in discerning the chief purposes and points of an initiative measure which must
be presented to the electorate in clear and understandable language. (Yes on 25, supra,
189 Cal.App.4th at p. 1452, citing Epperson v. Jordan (1938) 12 Cal.2d 61, 66, 70.)
Accordingly, the Attorney General is afforded “considerable latitude” in preparing a title
and summary. (Tinsley v. Superior Court (1983) 150 Cal.App.3d 90, 108; see Yes on 25,
supra, 189 Cal.App.4th at pp. 1452-1453.) “This deference stems in part from the
recognition that drafting a title and summary ‘can be a difficult task where multiple
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reasonable interpretations . . . are possible.’ ” (Yes on 25, at p. 1453; Zaremberg v.
Superior Court (2004) 115 Cal.App.4th 111, 117.)
Thus, “[a]s a general rule, the title and summary prepared by the Attorney General
are presumed accurate, and substantial compliance with the ‘chief purpose and points’
provision is sufficient.” (Amador Valley, supra, 22 Cal.3d at p. 243; see also Tinsley v.
Superior Court, supra, 150 Cal.App.3d at p. 108.) If reasonable minds may differ as to
its sufficiency, the title and summary prepared by the Attorney General must be upheld
(Amador Valley, supra, 22 Cal.3d at p. 243) because “all legitimate presumptions should
be indulged in favor of the propriety of the attorney-general’s actions.” (Epperson v.
Jordan, supra, 12 Cal.2d at p. 66; see Holmes v. Jones (2000) 83 Cal.App.4th 882, 888.)
Only in a “clear case” should a title and summary prepared by the Attorney General be
held insufficient. (Yes on 25, supra, 189 Cal.App.4th at p. 1453; see Brennan v. Board of
Supervisors (1981) 125 Cal.App.3d 87, 92-93.)
In contrast to the latitude and discretion granted the Attorney General, courts do
not have a wide range of discretion in ruling on a preelection challenge to the sufficiency
of a title and summary prepared by the Attorney General. (Yes on 25, supra,
189 Cal.App.4th at p. 1453.) Rather, though we independently examine the question of
whether the title and summary substantially complies with statutory standards (see
Martinez v. Superior Court (2006) 142 Cal.App.4th 1245, 1248), we may grant relief
“only upon clear and convincing proof that the [challenged materials] in question [are]
false, misleading, or inconsistent with the requirements of this code.” (§ 9092; Yes on 25,
supra, 189 Cal.App.4th at p. 1453.)
Given these heightened standards, respondent court’s order striking the circulating
title and summary prepared by the Attorney General in favor of language drafted by the
court cannot stand.
As a threshold matter, we reject Allen’s suggestion that we evaluate the title
separately from the summary to determine whether the Attorney General has met his
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statutory burden, and the title itself must meet all statutory requirements. The Elections
Code defines the circulating title and summary as a single document, using singular verbs
to describe what it is and what it does (see § 303.5, subd. (c) [defining the “circulating
title and summary” as “the text that is required to be placed on a petition for signatures
that is either one of the following: [¶] (A) The summary of the chief purpose and points
of a proposed initiative measure that affects the Constitution or laws of the state, and the
fiscal impact of the proposed initiative measure. [¶] (B) The summary of the chief
purpose and points of a referendum measure that affects a law or laws of the state”].)
Other provisions of the Elections Code likewise define the title and summary as a single
document, and constraints on the Attorney General in the discharge of his duty to prepare
them indicates they are to be read together. (See, e.g., §§ 9004, subd. (a) [the Attorney
General shall “prepare a circulating title and summary of the chief purposes and points of
the proposed measure”] and 9051, subd. (c) [in so doing, the Attorney General shall “give
a true and impartial statement of the purpose of the measure in such language that the . . .
title and summary shall neither be an argument, nor be likely to create prejudice, for or
against the proposed measure”].) Allen’s reliance on cases construing a former version
of the law are inapposite on this point. (Compare Boyd v. Jordan (1934) 1 Cal.2d 468[finding that proponent-prepared title—“Initiative Measure Providing for Adoption of
Gross Receipts Act”—did not meet then-applicable statutory requirement3 that the title
describe “the nature of the petition and the subject to which it relates”] and Clark v.
Jordan (1936) 7 Cal.2d 248 [finding that proponent-prepared title failed to comply with
the statute because it “fails to disclose that any new taxes of any kind are to be imposed”]
3 Boyd v. Jordan, supra, 1 Cal.2d. 468, quotes the prior version of the statute it was
construing: “Section 1197b of the Political Code provides that, ‘Across the top of each
page after the first page of every initiative . . . petition or section thereof which may be
prepared and circulated in accordance with law there shall be printed in eighteen-point
gothic type a short title, in not to exceed twenty words, showing the nature of the petition
and the subject to which it relates.’ ” (Id. at pp. 470-471.)
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and Epperson v. Jordan, supra, 12 Cal.2d at p. 66 [opining that the statutory change
requiring Attorney-General-prepared titles calls into doubt the continuing vitality of the
substantive analysis of both those cases].)
Reading the title and summary together, we conclude the text prepared by the
Attorney General is not misleading, argumentative, or likely to create prejudice against
the measure. Contrary to respondent court’s conclusion that “the ordinary voter would
assume that the sole purpose of the measure is to eliminate (reduce) transportation
funding,” the Attorney General’s title and summary identifies the specific taxes and fees
that will be repealed—the tax on gasoline, tax on diesel fuel, sales and excise taxes on
diesel fuel, vehicle registration fees, and zero-emission vehicle fees—and identifies the
specific amount by which the particular tax or fee is sought to be repealed by the
initiative. It also states the concomitant fact that recently enacted state and local
transportation funding would be eliminated. In so doing, the title and summary prepared
by the Attorney General “reasonably inform the voter of the character and real purpose of
the proposed measure.” (Tinsley v. Superior Court, supra, 150 Cal.App.3d at p. 108.) It
does not, as Allen argues, “include[] all the sweet and exclude[] all the bitter.” Rather,
the title and summary will communicate to those persons whose signatures are being
solicited that, under the proposed initiative, both government spending on transportation
infrastructure and road repair and taxes and fees will be repealed. (See Costa v. Superior
Court (2006) 37 Cal.4th 986, 1016 [courts have been most concerned with departures
from the statutory requirements that mislead or withhold vital information from those
persons whose signatures are solicited].)
Unlike respondent court, we do not perceive the Attorney General’s use of the
word “revenues” in the title phrase “repealing revenues” to be inherently confusing,
particularly when read in connection with the summary’s reference to the initiative’s
“repealing portions of the tax on gasoline . . . and diesel fuel.” Respondent court reasons
the word “revenues” used in the title as misleading or likely to create confusion because
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of its appearance in the title as part of the phrase “repealing revenues,” because “the term
repeal, which means to annul, rescind, cancel, or nullify, is a term generally associated
with laws or legislative acts.” We do not find it confusing when reading the title and
summary together as a whole: the second sentence—or the “summary” portion of the title
and summary—clearly states the taxes and fees which would be repealed, and in what
amount, as we note above. That respondent court reached a contrary conclusion indicates
that reasonable minds may differ; but “a difference of opinion does not rise to the level of
clear and convincing proof that the challenged language in the ballot title and summary
and the ballot label is misleading.” (Yes on 25, supra, 189 Cal.App.4th at p. 1454.)
We also reject the argument advanced by both respondent court and Allen that—
while the initiative would both eliminate transportation funding and repeal taxes and
fees—the Attorney General’s title and summary is misleading because it presents the
initiative’s two effects in the wrong order. In respondent court’s view, repealing taxes
and fees “is not a means to an end, but an end in itself” and in choosing to list repealing
revenues after the elimination of transportation funding, the Attorney General has
“obscured” the true purpose of the measure. Respondent court’s rewrite of the title and
summary flips its two effects: the court first states that the initiative would repeal taxes
and fees, and then indicates that it would eliminate transportation programs. There is no
dispute that this initiative both repeals certain sources of funding, and eliminates certain
transportation programs funded by that source. The title and summary prepared by the
Attorney General is neither false, nor misleading, nor argumentative: it identifies both
effects; both effects are true, and both effects are neutrally presented. One of the two
effects—either repealing revenues or eliminating transportation—must be stated first. In
our view, the “considerable latitude” possessed by the Attorney General in preparing a
title and summary (see Yes on 25, supra, 189 Cal.App.4th at pp. 1452-1453) encompasses
the ability to determine which effect of the proposed initiative’s two effects to list first.
The title and summary are not rendered “false, misleading, or inconsistent with the
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requirements of this code” (§ 9092) simply because it first states that transportation
programs will be eliminated, and then states that taxes and fees will be repealed.
Moreover, given the extensive, but not complete, repeal of SB 1 proposed by the
initiative, and the number of statutory revisions that would result from its passage,
preparation of a circulating title and summary that would give the public a true and
impartial statement of the purpose of the measure is the very sort of difficult task the
Legislature has properly delegated to the Attorney General. (See Yes on 25, supra,
189 Cal.App.4th at p. 1453; cf. Lungren v. Superior Court (1996) 48 Cal.App.4th 435,
440-441 [given the brevity of the proposed initiative, the Attorney General’s use of the
initiative’s own words as the title and summary is appropriate].) Here, then, we cannot
fault the Attorney General’s decision to state first that the initiative will eliminate certain
transportation funding. Nor do we agree with respondent court that the Attorney
General’s title and summary “focus[es] so heavily on the elimination of funding that it
obscures the chief purpose of the initiative: repeal of the recently-enacted taxes and fees.”
Were we writing on a blank slate, we might reverse the order of the two effects, but that
is not the standard we apply here. Rather, the question of what is and what is not the
most important provision is a question of opinion and, unless untrue, misleading, or
argumentative, “ ‘ “ ‘the opinion of the attorney-general should be accepted by this
court.’ ” ’ ” (Lungren v. Superior Court, supra, 48 Cal.App.4th at p. 440.)
Allen similarly insists the Attorney General has written the title “to focus entirely
on the elimination of transportation funding, and avoid any reference to ‘taxes’ and
‘fees’ ” and that his having done so necessarily creates a misleading title and summary.
We disagree. First, we repeat that current election law requires that we read the title and
summary together, and the words “taxes” and “fees” certainly appear extensively in the
summary. Second, and as respondent court recognizes, the title alone need not use any
particular words—including “taxes” and “fees”—if it otherwise complies with the statute.
(See Lungren v. Superior Court, supra, 48 Cal.App.4th at pp. 441-443 [rejecting the
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notion that the Attorney General “ ‘has not fully stated the main purpose of chief point of
the initiative, . . . to effect changes or stop the affirmative action programs within the
State of California’ ” because it failed to use the words affirmative action in the ballot
title and summary, and ballot label].)
Respondent court errs, moreover, in drawing any conclusion from the fact that the
Attorney General “could have included the terms ‘taxes’ and ‘fees’ in the title and still
complied with the 100-word limit,” yet he failed to do so. To infer an intent to mislead
the public from the fact that the Attorney General “could have” written his title and
summary differently is inconsistent with our duty to indulge all legitimate presumptions
in favor of the propriety of the Attorney General’s actions. (See Epperson v. Jordan,
supra, 12 Cal.2d at p. 66; Amador Valley, supra, 22 Cal.3d at p. 243.) Nor should a court
draw any adverse conclusion from the fact that the Attorney General wrote his own title
and summary, rather than using one proposed by Allen, as respondent court suggests it
does here (opining that Allen’s “proposal shows it is not difficult to write a summary of
the initiative in clear and understandable language. And this does call into question why
the Attorney General used the confusing language that he did”).
There will always be a multitude of ways in which any initiative or ballot proposal
“could have” been described. That is the nature of language. But the Elections Code has
not made the courts the drafters of titles and summaries. That role has been assigned to
the Attorney General. Our task is not to compose but to review the language composed
by the Attorney General for accuracy and impartiality. Perhaps better words could be
chosen or arranged differently but there is no basis to conclude that the Attorney
General’s work product is inaccurate, argumentative or misleading, or otherwise beyond
the bounds of the extensive discretion reposed in that office in fashioning a title and
summary.
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DISPOSITION
Petitioner has sought the issuance of a peremptory writ in the first instance, and
real party in interest has filed opposition thereto. The procedural requirements delineated
in Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d 171 have been satisfied, and
we are authorized to issue the requested relief.
Let a peremptory writ of mandate issue directing respondent court to vacate its
ruling on submitted matter of September 25, 2017, and the judgment entered October 6,
2017, and to enter a new order denying real party in interest Travis Allen’s verified
petition for writ of mandate.
This decision is final forthwith. (See Cal. Rules of Court, rule 8.490(b)(2)(A).)
The previously issued stay shall remain in effect pending finality of this decision for
purposes of review.
The parties shall bear their own costs. (See Cal. Rules of Court, rule
8.493(a)(1)(B).)
RAYE , P. J.
We concur:
MURRAY , J.
DUARTE , J.
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ORIGINAL PROCEEDING in mandate. Timothy M. Frawley, Judge. Stay
issued. Petition granted.
Xavier Becerra, Attorney General, Thomas S. Patterson, Senior Assistant Attorney
General, Constance L. LeLouis and Seth E. Goldstein, Deputy Attorneys General, for
Petitioner.
No appearance for Respondent.
Enterprise Counsel Group, Benjamin P. Pugh, James S. Azadian and Garrett M.
Fahy for Real Party in Interest.
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