Kopp v. Fair Pol. Practices Com.

Page 108

47 Cal.Rptr.2d 108

11 Cal.4th 607, 905 P.2d 1248, 95 Cal. Daily Op. Serv. 9049,

95 Daily Journal D.A.R. 15,816

Quentin KOPP et al., Petitioners Common Cause, Intervenor; v. FAIR POLITICAL PRACTICES COMMISSION, Respondent California Legislature et al., Interveners.

No. S038571.

Supreme Court of California In Bank.

Nov. 30, 1995.

Ross Johnson, Kopp & Di Franco, Thomas M. Di Franco and Quentin L. Kopp, for petitioners.

Jonathan M. Coupal and Trevor A. Grimm as Amici Curiae on behalf of petitioners.

Munger Tolles & Olson, Bradley S. Phillips, Strumwasser & Woocher, Fredric D. Woocher, Michael J. Strumwasser, Raleigh H. Levine, for intervener on behalf of petitioners.

Steven G. Churchwell, Scott Hallabrin and Ravi Mehta, for respondent.

Remcho, Johansen & Purcell, Joseph Remcho, Robin B. Johansen, Julie M. Randolph, Philip C. Monrad, Wendy S. Strimling and

Karen A. Getman, for interveners on behalf of respondents.

Olson, Hagel, Fong, Leidigh, Waters & Fishburn, Lance H. Olson and George Waters as Amici Curiae.

LUCAS, Chief Justice.

I. INTRODUCTION AND SUMMARY

In 1988 the voters enacted Proposition 73, which was designed to reform financing of statewide and local political campaigns. (See Gov.Code, §§ 82041.5, 85100-85400, 89001.) ¹ Five provisions of that measure are at issue in this litigation: Section 85301, subdivision (a) (hereafter section 85301(a)) limits to $1,000 per fiscal year, contributions by a "person" to a candidate or to committees controlled by the candidate. ² Section 85302 limits to $2,500 per fiscal year, contributions by a "person" to a "political committee, broad based political committee, or political party." ³ Section 85303, subdivision (a) (hereafter section 85303(a)) limits to $2,500 per fiscal year, contributions by a "political committee" to a "candidate or any committee controlled by that candidate." Subdivision (b) (hereafter section 85303(b)) of the same section limits to $5,000 per fiscal year, contributions by a "broad based political committee or political party" to a "candidate or any committee controlled by that candidate." ⁴ Finally, section 85304 bans transfer of contributions between a candidate's own committees and between candidates. ⁵

In 1990, in a suit in which petitioners in the present litigation were allowed to intervene on behalf of the defendant (respondent herein Fair Political Practices Commission), the federal district court held the "fiscal year" measure of sections 85301-85303 unconstitutional, and enjoined enforcement of those sections and section 85304. (Service Employees v. Fair Political Practices (E.D.Cal.1990) 747 F.Supp. 580 (Service Employees I ).) The United States Court of Appeals for the Ninth Circuit affirmed the judgment of the district court (Service Employees v. Fair Political Practices (1992) 955 F.2d 1312 (Service Employees II )), and the high court denied certiorari review. (--- U.S. 3057 [112 S.Ct. 3057, 120 L.Ed.2d 922].)

In this original proceeding (see Cal. Const., art. VI, § 10; Cal. Rules of Court, rule 56(a)) brought by petitioners State Senator Quentin Kopp and Assemblyman Ross Johnson, cosponsors of Proposition 73, we issued an alternative writ of mandate to respondent Fair Political Practices Commission directing it to show cause why a peremptory writ of mandate should not issue ordering respondent to enforce sections 85301-85304. Respondent filed an answer taking a neutral position on the issue. We granted the motions of Common Cause to intervene on behalf of petitioners, and of the California Legislature and four legislators ⁶ to intervene on behalf of respondent. In addition we accepted amicus curiae briefs from other interested entities and legislators. ⁷

The issue is one of state law: Assuming enforcement of the challenged sections as enacted would violate the federal Constitution, may, and if so, should, the statutes be judicially reformed in a manner that avoids the fiscal year measure?

As explained below, we reject claims by interveners on behalf of respondent that the doctrine of res judicata or considerations of comity bar consideration of the issue raised. Nor does the federal appeals court's judgment affirming the federal district court's injunction against enforcement of sections 85301-85304 render those sections incapable of reformation by this court in this litigation.

We also reject the view that a court lacks authority to rewrite a statute in order to preserve its constitutionality or that the separation of powers doctrine, which vests legislative power in the Legislature and judicial power in the courts (Cal. Const., art. IV, § 1; id., art. VI, § 1), invariably precludes such judicial rewriting. Under established decisions of this court and the United States Supreme Court, a reviewing court may, in appropriate circumstances, and consistently with the separation of powers doctrine, reform a statute to conform it to constitutional requirements in lieu of simply declaring it unconstitutional and unenforceable. The guiding principle is consistency with the Legislature's (or, as here, the electorate's) intent: A court may reform a statute to satisfy constitutional requirements if it can conclude with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred such a reformed version of the statute to invalidation of the statute. We conclude, however, that we should not reform section 85304 and, under this test, we may not reform sections 85301(a), 85302, or 85303(a) and (b).

We will not reform the "inter-candidate" aspect of section 85304's transfer ban because the federal appeals court found that section unconstitutional on First Amendment and overbreadth grounds unrelated to reformation of the fiscal year measures of sections 85301(a) and 85303(a) and (b), and hence its order in this regard will not be implicated by our judgment herein, whether or not we reform the latter two sections.

Nor will we reform section 85301(a) or section 85303(a) and (b)--each of which regulates contributions to individual candidates--because, as illustrated by the starkly divergent positions of petitioners and intervener on their behalf, on one hand, and the justices joining Justice Baxter's concurring and dissenting opinion, on the other hand, the statutes cannot be reformed in a fashion that closely effectuates policy judgments clearly articulated by the electorate. Specifically, because the "per election" approach advocated by petitioners and Common Cause would allow candidates less funding than the electorate contemplated, and because the so-called "modified election cycle" reformation advocated by Justice Baxter's concurring and dissenting opinion would allow candidates more funds than the electorate planned (and would remove any regulation of the pace of contributions for nonpartisan offices), neither reformation would closely effectuate policy judgments clearly expressed by the electorate, and hence neither reformation is permissible.

Finally, for related reasons, we will not reform section 85302, which regulates contributions to political committees or parties.

II. BACKGROUND: LITIGATION CONCERNING PROPOSITION 73

In Service Employees I, supra, 747 F.Supp. 580, the federal district court considered challenges to, inter alia, four sections of Proposition 73. First, the plaintiffs challenged the measure's three "contribution limitations" provisions: Sections 85301(a) and 85303(a) and (b), which, as noted above, regulate the maximum dollar amount of contributions to candidates "in any fiscal year," and section 85302, which, as noted above, regulates the maximum dollar amount of contributions to political committees or parties "in any fiscal year." ⁸ In addition, the plaintiffs challenged the measure's ban on transfer of contributions between a candidate's own committees (the "intra-candidate transfer ban") and between candidates (the "inter-candidate transfer ban") (§ 85304).

The federal district court found the fiscal year provisions of the three contribution limitation sections (§§ 85301-85303) unconstitutional because they would have the effect of discriminating in favor of incumbents. Relying on expert testimony presented at trial, the court noted that incumbents typically begin to solicit campaign contributions during each of the years of incumbency, but that challengers generally do not (and, as a practical matter, cannot) do so, because unlike incumbents, they typically do not decide to run for office years in advance of an election. (747 F.Supp. at p. 588.) As a result, the district court found, a "fiscal year" measure for contribution limitations would tend to favor incumbents over challengers, ⁹ and it concluded this disparate treatment violated the First and Fourteenth Amendments to the federal Constitution. (Id., at p. 590.) Having reached this conclusion, the court found it unnecessary to address additional challenges to those statutes raised by the plaintiffs. (Ibid.)

After resolving this federal constitutional issue the court turned to an issue of state law, i.e., whether the constitutionally invalid "fiscal year" provision of the contribution limitation sections (§§ 85301-85303) might be severed from those sections. (747 F.Supp. at p. 590.) The court noted that Proposition 73 contained a severance clause, and it cited our decision in Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821-822, 258 Cal.Rptr. 161, 771 P.2d 1247 (see 747 F.Supp. at p. 590, fn. 22), in which we expressly recognized that the presence of such a clause " 'normally calls for sustaining the valid part of the enactment....' " (Calfarm, supra, 48 Cal.3d at p. 821, 258 Cal.Rptr. 161, 771 P.2d 1247.) The federal district court summarily concluded, however, that the fiscal year provisions could not be severed from the contribution limitations themselves, and it...