Brosnahan v. Eu

Opinion

THE COURT.

In this proceeding petitioners seek to prevent respondent Secretary of ¡State from instituting measures preparatory to placing on the ballot at the June 1982 Primary Election an initiative measure relating to “Criminal Justice” and entitled (in § 1 thereof) “The Victims’ Bill of Rights.” Petitioners assert that respondent has failed to comply with certain statutory provisions regarding the number of valid signatures required to qualify the measure for the ballot, and that the proposed measure is unconstitutional because it contains more than one subject (Cal. Const., art. II, § 8, subd. (d)) and amounts to a “revision” of the Constitution rather than an “amendment” thereto (see id., art. XVIII, §§ 1-3).

The proponents of the initiative measure duly presented to the appropriate public officials petitions containing 663,409 signatures. The number of valid signatures necessary to qualify the measure for the ballot under article II, section 8, subdivision (b), of the Constitution is 553,790. Upon examination of the certificates submitted by county officials on the basis of the random sampling provided for in the Elections Code, respondent determined that the petitions contained 108.76 percent of the number of signatures required for a place on the ballot. Respondent refused to take steps to submit the measure to the voters on the ground that the number of valid signatures disclosed by the sample fell short of the 110 percent then required by section 3520, subdivision (g). Instead, she ordered local election officials to verify each signature.

The proponents of the measure, real parties in interest in the present proceeding, sought a writ of mandate before the Superior Court of Sacramento County to compel respondent to certify the initiative as having qualified for the ballot, and to take the steps required by law to place it before the voters. Respondent took the position that, although she was prohibited by law from certifying the petitions because random sampling indicated fewer than 110 percent valid signatures, she was nevertheless of the opinion that , the 108.76 percent valid signatures found on the petitions constituted substantial compliance with the requirement of the Elections Code to qualify the measure for the ballot without the need for verification of each signature. Following entry of a judgment, stipulated by the parties, to the effect that real parties had substantially complied with the requirements of the Elections Code so as to qualify the initiative for the ballot, a writ of mandate was issued by the trial court directing respondent to certify the initiative for the June 8, 1982, Primary Election, and to take other steps required by law to place the measure before the voters in that election.

Thereafter, petitioners, who are electors in various counties of the state, filed with us an original petition for writ of mandate and prohibition to prevent respondent from certifying the initiative and to restrain her from performing any act in aid of submission of the measure to the voters. Because of the importance of the questions presented and the time constraints involved, we issued an alternative writ of mandate and expedited briefing and oral argument. (Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 808 [114 Cal.Rptr. 577, 523 P.2d 617] and cases cited.) We also issued a stay prohibiting enforcement of the trial court’s writ of mandate pending final disposition of the present proceeding.

While this litigation was pending, the Legislature passed, and the Governor signed, an urgency measure (Stats. 1982, ch. 102) providing that if, on or before January 28, 1982, the Secretary of State received from the several county clerks certificates, based on a random sampling technique, establishing that the number of valid signatures affixed to an initiative petition is more than 105 percent of the number of qualified voters needed, the petition shall be deemed to have qualified for the ballot. The Secretary of State received such certificates on or before January 28, 1982.

We conclude that the initiative measure should be placed on the ballot of the June 1982 Primary Election.

We do not reach the other issues raised by petitioners. As we have frequently observed, it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people’s franchise, in the absence of some clear showing of invalidity. (E.g., Mulkey v. Reitman (1966) 64 Cal.2d 529, 535 [50 Cal.Rptr. 881, 413 P.2d 825]; Wind v. Hite (1962) 58 Cal.2d 415, 417 [24 Cal.Rptr. 683, 374 P.2d 643]; Gayle v. Hamm (1972) 25 Cal.App.3d 250, 256-257 [101 Cal.Rptr. 628].)

The stay of enforcement of the judgment in Sacramento Superior Court, No. 301007, is vacated, and the peremptory writs of mandate and prohibition are denied. The judgment is final forthwith.

Newman, J., dissented.