MOSK, J., Concurring and Dissenting.—
I.
With unseemly haste and overlooking conflicting code sections (e.g., Elec. Code, § 3521, subd. (a)), the Legislature has attempted to decide a pending lawsuit by the remarkable method of adopting an urgency statute which in actuality applies only to this proposed initiative and to no other, past, present or future.
At the very least, the preferential treatment accorded the proponents of this measure severely taxes article I, section 7, subdivision (b), of the Constitution, which provides that a “citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.” More broadly, the legislative preference granted only to these proponents suggests that varying numerical standards for the qualification of initiatives prevail in this state, dependent solely upon whether the legislators like or dislike a proposal to be voted on by the people.
Despite my misgivings, however, I doubt the wisdom of this court, or any court, probing behind a measure adopted by the Legislature and signed by the Governor. (People v. County of Santa Clara (1951) 37 Cal.2d 335, 337 [231 P.2d 826]; Spaulding v. Desmond (1922) 188 Cal. 783, 790 [207 P. 896].) In deference to the legislative determination that the law be changed to accommodate the proponents of this petition, I concede that the initiative measure — under the newly created standard — meets the ballot mathematical requirement.
[6]II.
Unlike the majority, however, I believe we are required to reach petitioners’ second contention: that the criminal justice initiative violates the constitutional command that “an initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” (Art. II, § 8, subd. (d).) Before analyzing the merits of this claim, I deal with the opinion of the majority that the proper time to address constitutional challenges to the initiative is when and if it becomes law.
The principle is firmly established that unless it is clear that a proposed initiative is unconstitutional, the courts should not interfere with the right of the people to vote on the measure. In the service of this precept, courts have frequently declined to strike an initiative from the ballot despite a claim that its adoption would be a futile act because the measure offends the Constitution. (E.g., Mulkey v. Reitman (1966) 64 Cal.2d 529, 535 [50 Cal.Rptr. 881, 413 P.2d 825]; Gayle v. Hamm (1972) 25 Cal.App.3d 250, 256-258 [101 Cal.Rptr. 628].)
But this rule applies only to the contention that an initiative is unconstitutional because of its substance. If it is determined that the electorate does not have the power to adopt the proposal in the first instance or that it fails to comply with the procedures required by law to qualify for the ballot, the measure must be excluded from the ballot.
Thus, for example, election officials have been ordered not to place initiative and referendum proposals on the ballot on the ground that the electorate did not have the power to enact them since they were not legislative in character (e.g., Simpson v. Hite (1950) 36 Cal.2d 125, 129-134 [222 P.2d 225]; Fishman v. City of Palo Alto (1978) 86 Cal. App.3d 506, 511-512 [150 Cal.Rptr. 326]; cf. Farley v. Healey (1967) 67 Cal.2d 325, 328-329 [62 Cal.Rptr. 26, 431 P.2d 650]), the subject matter was not a municipal affair (e.g., Riedman v. Brison (1933) 217 Cal. 383, 387 [18 P.2d 947]; Mervynne v. Acker (1961) 189 Cal. App.2d 558, 565-566 [11 Cal.Rptr. 340]), or the proposal amounted to a revision of the Constitution rather than an amendment thereto (McFadden v. Jordan (1948) 32 Cal.2d 330, 349-351 [196 P.2d 787]).
Cases in which initiatives were excluded because they failed to comply with requirements of law to qualify for the ballot usually involved the violation of laws designed to prevent voter deception or confusion. [7](E.g., Clark v. Jordan (1936) 7 Cal.2d 248, 252 [60 P.2d 457, 106 A.L.R. 549]; Boyd v. Jordan (1934) 1 Cal.2d 468, 470-475 [35 P.2d 533]; Myers v. Stringham (1925) 195 Cal. 672, 675-676 [235 P. 448].)
The objective of the constitutional provision limiting initiatives to a single subject is to minimize the risk of confusion and deception of the voters. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 231 [149 Cal.Rptr. 239, 583 P.2d 1281].) The limitation was itself adopted by initiative at the General Election of November 2, 1948, as an Assembly constitutional amendment. The ballot argument in its favor stated that it was intended to protect both signers of initiative petitions and voters at the election from being misled as to the “over-all effect of the proposed amendment” and declared, somewhat optimistically, that an initiative confined to “one subject and one subject only” would enable voters to “readily understand just what the entire proposition is and not be confused or misled by a maze of unrelated matters, some of which are inadequately explained, purposely distorted, or intentionally concealed.” (Ballot Pamp., Gen. Elec. (Nov. 2, 1948) pp. 8-9.)1
It seems self-evident that these objectives will be violated by allowing the electorate to vote on a measure which may be misleading, since the requirement is designed precisely to avoid that result. The language of the Constitution supplies forceful confirmation of this rationale. It provides that an initiative which contains more than one subject “may not be submitted to the electors or have any effect.” (Art. II, § 8, subd. (d); italics added.) This mandate does more than authorize a court in its discretion to prevent a proposal which contains more than one subject [8]from appearing on the ballot. When viewed in light of its purpose, the constitutional provision compels the exclusion of such an initiative. An initiative which contains multiple subjects is no more entitled to a place on the ballot than one which contains an insufficient number of signatures; there is no less justification for withholding our power to strike the measure in one case than the other.2
I come, then, to the merits of petitioners’ argument that the criminal justice initiative violates the single subject rule. Although this rule is of relatively recent vintage insofar as initiatives are concerned, our Constitution has long required that measures enacted by the Legislature embrace only one subject. (Art. IV, § 9, formerly art. IV, § 24.) A similar requirement appears in the constitutions of a large majority of states. (See Ruud, One-Subject Rule (1958) 42 Minn.L.Rev. 389.)
In determining whether a statute passed by the Legislature violates the single subject rule, the fundamental test is whether the provisions of the act are “reasonably germane” to one another. This standard is satisfied if the components have “one general object,” if they refer to “projects so related and interdependent as to constitute a single scheme,” or if they are “auxiliary to and promotive of’ the main purpose or have a “necessary and natural connection with that purpose.” (Evans v. Superior Court (1932) 215 Cal. 58, 62-63 [8 P.2d 467]; Metropolitan Water Dist. v. Marquardt (1963) 59 Cal.2d 159, 172-173 [28 Cal.Rptr. 724, 379 P.2d 28]; Tarpey v. McClure (1923) 190 Cal. 593, 597 [213 P. 983].)
Shortly after adoption of the measure limiting initiatives to a single subject, it was held that the standards set forth above with regard to statutes were also to be applied to initiatives. In Perry v. Jordan (1949) 34 Cal.2d 87, 92-94 [207 P.2d 47], the “reasonably germane” test was [9]applied to a referendum proposal which repealed certain constitutional provisions governing aid to the aged and blind.3
An additional and more restrictive test of compliance was introduced in Amador. That test, proposed by the late Justice Manuel in his dissenting opinion in Schmitz v. Younger, supra, 21 Cal.2d 90, 100, measures whether the provisions of the initiative “are functionally related in furtherance of a common underlying purpose.” We held in Amador that the four sections of Proposition 13 were both reasonably germane and functionally related to the general subject of property tax relief and that, therefore, the single subject rule was not violated. (See also Fair Political Practices Com. v. Superior Court, supra, 25 Cal.3d 33, 38-42.) Thus, although Justice Manuel’s test was expressed in a dissent, in substantial effect it has been adopted by this court. I fully accept it.
I next summarize the provisions of the criminal justice initiative to determine if it complies with the single subject rule. The measure adds one section containing seven separate subdivisions to the Constitution and repeals one section thereof (art. I, § 12, relating to bail). It also adds five new sections to the Penal Code and three more separate sections to the Welfare and Institutions Code.
The constitutional provision in the proposed initiative (§3) adds section 28 to article I, declaring that victims of crime have a right to restitution from wrongdoers for financial losses and the right to expect that wrongdoers will be punished. (§ 28, subd. (a).) The Legislature is directed to adopt provisions to implement the right to restitution. {Id., subd. (b).) In addition, section 28 declares that students and staff of schools from elementary to high school have the right to be safe on school campuses. (Subds. (a), (c).) It provides that relevant evidence in criminal proceedings shall not be excluded (with certain exceptions) unless the Legislature provides otherwise in a statute enacted by a two-thirds vote (subd. (d)), sets forth standards and procedures for release of suspects on bail or on their own recognizance (subd. (e)), and [10]allows the use of prior felony convictions for impeachment or for enhancement of a sentence (subd. (f)).
The Penal Code provisions in the initiative abolish the defense of diminished capacity (§ 4 [adds § 25, subd. (a)]), provide a definition of insanity {id., subd. (b)), and prohibit introduction of evidence of diminished capacity or mental disorder except at the time of sentencing or commitment {id., subd. (c)). The punishment of persons convicted of specified felonies who have been previously convicted of such crimes is enhanced. (§ 5 [adding § 667, subd. (a)].) A victim of crime is afforded the right to attend sentencing and parole proceedings and to make a statement at such proceedings; in imposing sentence or determining eligibility for parole, the judge or parole board shall state whether the criminal would pose a threat to public safety if granted parole or probation. (§6 [adding §§ 1191.1, 3043].) Plea bargaining as to specified crimes is forbidden except under certain circumstances. (§7 [adding § 1192.7].)
The three sections added to the Welfare and Institutions Code by the proposed initiative afford victims of crime the same rights with regard to the release of juveniles on parole as are described above. (§6 [adding § 1767].) A person convicted of a serious felony may not be committed to the Youth Authority if over the age of 18. (§ 8 [adding § 1732.5].) Finally, existing provisions of the Welfare and Institutions Code relating to the commitment and treatment of mentally disordered sex offenders are rendered “inoperative,” except as to those previously committed under the program. (§ 9 [adding § 6331].)
Both petitioners and the proponents curiously miss the mark in their arguments relating to the single subject requirement. Petitioners, taking their cue from the arguments in the ballot pamphlet favoring the passage of the proposed initiative which adopted the single subject rule, focus their attack on the alleged “grossly misleading, deceptive and confusing” nature of the measure. But we do not have the power to exclude an initiative from the ballot because it is said to be misleading or confusing, unless it would violate the law to allow the voters to act on the measure. Thus, the decisive issue is whether the proposal transgresses the single subject rule. Only if such a violation is found does the issue of voter confusion become relevant.
The proponents argue that the initiative deals with one subject which they describe as “protection of the public from criminal activity.” They [11]assert that the measure “attempts to accomplish this goal through interlocking reforms focusing both on victims of crime and on offenders.” But the goal of all criminal law is, after all, to protect the public against crime. The entire Penal Code is so directed. The constitutional requirement is not satisfied by attaching a broad label to a measure and then claiming that its provisions are encompassed under that wide umbrella. Otherwise, initiatives which refer to “property” or “women” or “public welfare” or the “pursuit of happiness” could also be held to constitute one subject, no matter how diverse their terms.
Our decision should be based not on whether the provisions of this initiative may fit under some broad rubric, but on whether their substance meets the two tests set out above, i.e., whether its provisions are “reasonably germane” to one another, and whether they are “functionally related in furtherance of a common underlying purpose.”
In my view, the measure fails on both counts. I can discern no “general object” or “main purpose” of the initiative more limited in scope than the one ascribed to it by the proponents, i.e., “protection of the public from criminal activity,” which simply amounts to a claim that the subject of the initiative is criminal law or criminal justice. A few examples will suffice. The provisions for affording monetary restitution to victims of crime have “no necessary or natural connection” with the abolition of the program for treatment of mentally disordered sex offenders, and the declaration that students and staff are entitled to safe schools and the abolition of the defense of diminished capacity have no such connection with either. These provisions cannot be characterized as “so related and interdependent as to constitute a single scheme,” or “auxiliary and promotive” of one another.
Since there is no common object among the numerous provisions of the initiative, it follows that it does not satisfy the more stringent test of a functional relationship in furtherance of a common underlying purpose.
The violation of the constitutional requirement poses a real danger of voter deception and confusion. Although the measure piously declares that safe schools are a right, it does not contain one provision referring to schools. A voter or the signer of a petition would reasonably expect that a lengthy amendment which states in one of its first paragraphs that “students and staff have the right to be safe and secure in their persons” on campus would contain some reference to and propose some [12]protection of that right in its substantive provisions. Only by carefully scrutinizing all the provisions of the initiative can one determine that this expectation is not fulfilled.
The proposal attempts to render “inoperative” the provisions of the Welfare and Institutions Code relating to commitment of mentally disordered sex offenders simply by adding a section to that code stating “this article shall become inoperative the day after the election. .. . ”4 The only indication as to what “this article” may refer to is contained in the title of section 9, “Mentally Disordered Sex Offenders.” Presumably, therefore, the voter would know that the measure affects some provisions of law relating to such persons, but in order to determine what those provisions aré he is required to go to a library and consult the Welfare and Institutions Code, ascertain which article was involved, and read the provisions of the article.
Many years ago, this court considered a similar defect in a local initiative. (Myers v. Stringham, supra, 195 Cal. 672.) The proposal purported to amend a local zoning ordinance by adding a legal description of property and by repealing a provision identified only by its number. The city charter provided that an ordinance could not be changed by its title, and that the terms of the ordinance to be changed “shall be set forth and adopted in the method provided in this section for the adoption of ordinances.” The purpose of the charter provision was to compel a law to disclose on its face something of its purpose and effect. The Constitution contains a similar provision with regard to acts of the Legislature.5 It was held that the initiative failed to comply with the charter requirement, and the court denied a writ of mandate to compel the city clerk to certify the petition as sufficient. The observations in the opinion are instructive: “The wisdom of the requirement [of the charter] is at once apparent from an inspection of the proposed ordinance. The new subsection sought to be added to the section by amendment is no more than a description of certain real property. It does not purport to disclose what the effect of its adoption would be ei[13]ther on the status of the particular property described or on its relation to the general zoning classifications in the city. It cannot be determined from its inspection what is sought to be accomplished. If the petition were examined and certified and ... if the requisite number of votes were to be cast in favor thereof it would still lack the sanction of the charter to give it legality.
“If in any event the proposed ordinance would be void, mandamus will not lie to compel its examination and certification for the reason that the writ may not be used to compel the performance of an act which would have no effect in law.” (195 Cal. at p. 676.)
This language and reasoning is, in my view, directly applicable to the case at hand.
Moreover, the provisions of the initiative cover subjects so broad that they effectively repeal substantial portions of the Evidence Code, the Penal Code, and the Welfare and Institutions Code, although the measure purports to enact eight statutes and one constitutional provision, and to repeal one section of the Constitution. The title and summary prepared by the Attorney General demonstrates that even under the most liberal interpretation of the constitutional requirement the criminal justice amendment cannot be construed to contain “one subject and one subject only.” (See fn. 1, ante.) The Attorney General enumerates at least 12 subjects in the measure, and adds an enigmatic catchall: “and other matters.”6
In view of my conclusion that the proposed initiative violates article II, section 8, subdivision (d), of the Constitution, I need not discuss petitioners’ additional assertion that it is also unconstitutional because it amounts to a revision rather than amendment of the Constitution.
[14]I would order a peremptory writ of mandate to issue directing respondent to take no further steps toward placing the criminal justice initiative on the ballot.
Bird, C. J., concurred in part II of this opinion.
The argument in favor of the amendment stated, “Today, any proposition may be submitted to the voters by initiative and it may contain any number of subjects. By this device a proposition may contain 20 good features, but have one bad one secreted among the 20 good ones. The busy voter does not have the time to devote to the study of long, wordy, propositions and must rely upon such sketchy information as may be received through the press, radio or picked up in general conversation. If improper emphasis is placed upon one feature and the remaining features ignored, or if there is a failure to study the entire proposed amendment, the voter may be misled as to the overall effect of the proposed amendment.
“Assembly Constitutional Amendment No. 1 entirely eliminates the possibility of such confusion inasmuch as it will limit each proposed amendment to one subject and one subject only.
“Protection is also given to those individuals who sign the sponsoring petition. People requested to sign the sponsoring petition will readily understand just what the entire proposition is and not be confused or misled by a maze of unrelated matters some of which are inadequately explained, purposely distorted, or intentionally concealed.”
In Amador, we held that the single subject requirement was not violated by Proposition 13 (now art. XIII A of the Const.), a measure relating to taxation, which had been adopted by initiative some months before our opinion was filed. We stated the fact that the measure had received massive publicity diluted the risk of voter confusion or deception. (22 Cal.3d 208, 231.) Whether the criminal justice initiative will receive equally wide publicity we cannot predict. Obviously, however, we may not refrain from passing on the issue before us on the assumption that in a forthcoming election the effect of such a violation will be mitigated. To do so would read out of the Constitution the direction that a measure containing more than one subject “may not be submitted to the electors.” Furthermore, it is clearly preferable to avoid the prospect of voter confusion by keeping an initiative which violates the Constitution off the ballot than to allow the proposal to appear before the voters and speculate after the election whether confusion resulted.
More recently, some members of this court have expressed doubts whether the same test should be applied to legislative acts as to initiatives. (See cone. opn. of Tobriner, J., in Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 50 [157 Cal.Rptr. 855, 599 P.2d 46]; dis. opn. by Manuel, J. in Schmitz v. Younger (1978) 21 Cal.3d 90, 99 [145 Cal.Rptr. 517, 577 P.2d 652].) Their views merit more thoughtful consideration in these days of proliferation of initiative proposals.
Section 9 of the initiative states: “Mentally Disordered Sex Offenders. Section 6331 is added to the Welfare and Institutions Code, to read:
“6331. This article shall become inoperative the day after the election at which the electors adopt this section, except that the article shall continue to apply in all respects to those already committed under its provisions.”
Article IV, section 9, of the Constitution, which contains the prohibition against a statute which embraces more than one subject, also provides: “A statute may not be amended by reference to its title. A section of a statute may not be amended unless the section is re-enacted as amended.”
The title and summary is as follows: “CRIMINAL JUSTICE. INITIATIVE STATUTES AND CONSTITUTIONAL AMENDMENT. Amends Constitution and enacts several statutes concerning procedural treatment, sentencing, release, and other matters for accúsed and convicted persons. Includes provisions regarding restitution to victims from persons convicted of crimes, right to safe schools, exclusion of relevant evidence, bail, use of prior felony convictions for impeachment purposes or sentence enhancement, abolishing defense of diminished capacity, use of evidence regarding mental disorder, proof of insanity, notification and appearance of victims at sentencing and parole hearings, restricting plea bargaining, Youth Authority commitments, resentencing of persons previously committed as mentally disordered sex offenders, and other matters. Fiscal impact on state and local governments: The Legislative Analyst and the Director of Finance advise that they are unable to determine the net costs at this time but indicate that the measure would result in substantial increases in state and local expenditures.”