AFL v. Eu

In AFL v. Eu, the California Supreme Court reviewed numerous decisions concerning the issue of whether an initiative or referendum voted on by the people could constitute a proper action under Article V, and the Court resounding held that it could not. First, it surveyed existing decisions on the issue:

The courts of Maine and Michigan filed opinions agreeing with Barlotti that article V precludes a referendum on the ratification of a constitutional amendment ( Opinion of the Justices (1919) 118 Me. 544 [107 A. 673, 5 A.L.R. 1412]; Decher v. Secretary of State (1920) 209 Mich. 565 [177 N.W. 388]), while Arkansas, Colorado, and Oregon reached the same result on state constitutional grounds ( Whittemore v. Terral (1919) 140 Ark. 493 [215 S.W. 686]; Prior v. Noland (1920) 68 Colo. 263 [188 P. 729]; Herbring v. Brown (1919) 92 Ore. 176 [180 P. 328].) Ohio and Washington, however, upheld referendum elections. ( Hawke v. Smith (1919) 100 Ohio St. 385 [126 N.E. 400]; Mullen v. Howell (1919) 107 Wash. 167 [181 P. 920].) The United States Supreme Court selected the Ohio decision for review and, in a unanimous decision, held unconstitutional a provision of the Ohio Constitution which declared that legislative ratification of a federal constitutional amendment was incomplete until approved by popular referendum. ( Hawke v. Smith, supra, 253 U.S. 221.)

AFL v. Eu, 36 Cal. 3d 687, 701, 206 Cal. Rptr. 89, 98, 686 P.2d 609, 618 (1984).

The court continued:

Many years have passed since Barlotti and Hawke were filed, but those decisions remain the unquestioned and controlling authority. (See Opinion of the Justices to the Senate, supra, 366 N.E.2d 1226.) Thus in 1975, when the California Attorney General was asked whether the voters by initiative could rescind the Legislature's ratification of the Equal Rights Amendment, he cited Barlotti and Hawke, and replied: "The California electorate cannot effectively rescind the Legislature's ratification by the initiative process because amendments to the federal constitution are not subject to the initiative or referendum process in California." (58 Ops.Cal.Atty.Gen. (1975) 830, 831.)

As we noted earlier, the cited cases refer to the role of the Legislature in ratifying, not in proposing, constitutional amendments. Courts and commentators agree, however, that the term "Legislatures" bears the same meaning throughout article V. The Massachusetts Supreme Judicial Court, in holding that a governor cannot veto an application for a constitutional convention, declared that "[since] the word 'Legislatures' in the ratification clause of Art. V does not mean the whole legislative process of the State . . ., we are of the opinion that the word 'Legislatures' in the application clause, likewise, does not mean the whole legislative process." ( Opinion of the Justices, supra, 366 N.E.2d 1226, 1228.) Senator Ervin, explaining proposed legislation to regulate a constitutional convention, stated that "[certainly] the term 'legislature' should have the same meaning in both the application clause and the ratification clause of Article V." (Ervin, Proposed Legislation to Implement the Convention Method of Amending the Constitution (1968) 66 Mich.L.Rev. 875, 889; see Bonfield, Proposing Constitutional Amendments by Convention (1969) 39 N.D. L.Rev. 659, 665.)

(3) We conclude that when article V refers to an application by the "Legislatures" of two-thirds of the states, calling for a constitutional convention, it refers to the representative lawmaking bodies in those states. Any application directly by the people, through their reserved legislative power, would not conform to article V.

AFL v. Eu, 36 Cal. 3d 687, 703, 206 Cal. Rptr. 89, 99, 686 P.2d 609, 619-20 (1984) The court concluded:

Let a peremptory writ of mandate issue commanding respondents not to take any action, including the expenditure of public funds, to place the proposed Balanced Budget Initiative on the November 6, 1984, General Election ballot.

AFL v. Eu, 36 Cal. 3d 687, 716, 206 Cal. Rptr. 89, 109, 686 P.2d 609, 629 (1984).