AMERICAN LUNG ASSOCIATION v. WILSON

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Court of Appeal, Third District, California.

 AMERICAN LUNG ASSOCIATION, etc. et al., Plaintiffs and Respondents, v. Pete WILSON, as Governor, et al., Defendants and Appellants.

AMERICANS FOR NONSMOKERS' RIGHTS, et al., Plaintiffs and Respondents, v. STATE of California, et al., Defendants and Appellants.

Nos. C020782, C020783.

Decided: December 13, 1996

 Daniel E. Lungren, Attorney General, Floyd D. Shimomura, Assistant Attorney General, Linda A. Cabatic, Supervising Deputy Attorney General, Keith Yamanaka, Deputy Attorney General for Pete Wilson, Kathleen Connell and Matt Fong, Dennis P. Eckhart, Supervising Deputy Attorney General, Thomas R. Yanger, Deputy Attorney General for S. Kimberly Belshe, Defendants and Appellants. George Waters, Olson, Hagel, Fong, Leidigh, Waters & Fishburn, Sacramento, Diane Perlite, Pleasant Hill, for American Lung Association, American Cancer Society, John Petitt, M.D., Shannon Pettit;  Loretta Pigg, Susan Romig, Senator NicholasC. Petris;  Senator Diane Watson;  Senator Art Torres, Senator Tom Hayden, Fredric D. Woocher, Strumwasser & Woocher, Santa Monica, Law Office of Mark A. Pertschuk for Americans for Nonsmokers, etc., Plaintiffs and Respondents. Catherine I. Hanson, San Francisco, Astrid G. Merghrigian for California Medical Association, Christine R. Hall, Lilly Spitz, Sacramento, for California Association of Hospitals and Health Systems Amicus Curiae.

In these two consolidated appeals, we conclude that a portion of Assembly Bill 816 (AB 816;  Stats.1994, c. 195) is a legally invalid legislative enactment.   The portion of AB 816 at issue is an appropriations measure that the defendants (collectively, the State) maintain substantively amends Proposition 99 (the 1988 Tobacco tax initiative measure).   As we explain, this portion of AB 816 is at odds with Proposition 99 as originally enacted, and, if this part of AB 816 is construed as a substantive amendment of Proposition 99, it is at odds with the re-enactment rule of article IV, section 9 of the California Constitution.   In light of our analysis, we affirm the judgment.

BACKGROUND

Proposition 99, the “Tobacco Tax and Health Protection Act of 1988” (the Act), is an initiative measure approved by the voters in November 1988.  (Rev. & Tax.Code, § 30121 et seq.;   all further undesignated section references are to the Revenue and Taxation Code unless otherwise noted.)   The Act imposes additional taxes on cigarette and tobacco product distributors. (§ 30123.)   For example, the Act imposes an additional excise tax of 25 cents  on a standard pack of cigarettes. (§ 30123, subd. (a).)  The Act creates a Cigarette and Tobacco Products Surtax Fund in the state treasury and deposits its taxes into that fund. (§ 30122, subd. (a).)

The Cigarette and Tobacco Products Surtax Fund (the Fund) consists of six separate accounts:  the Health Education Account;  the Hospital Services Account;  the Physician Services Account;  the Research Account;  the Public Resources Account;  and the Unallocated Account.  (§ 30122(b).)   The accounts at issue here are the Health Education Account and the Research Account.   Pursuant to section 30124(b), 20 percent of the moneys deposited in the Fund are to be allocated to the Health Education Account and 5 percent are to be allocated to the Research Account.   Pursuant to section 30122(b), the Health Education Account is available only for “appropriation for programs for the prevention and reduction of tobacco use, primarily among children, through school and community health education programs”;  and the Research Account is available only for “appropriation for tobacco-related disease research.”   Under section 30122(b), the Hospital Services Account and the Physician Services Account are to be used to pay for medical care for indigents (such care does not have to be tobacco-related). (§ 30122(a).)

The Legislature, through the part of AB 816 before us, made certain appropriations from the Health Education Account and the Research Account for the 1994–1995 and the 1995–1996 fiscal years;  these appropriations are challenged here by, among others, the American Lung Association and Americans for Nonsmokers' Rights.  (1994 Stats., c. 195, § 53(b)(3), (b)(5), (j), (k), (l ), (m), (n), (o), and (p);  § 54(b)(3), (b)(5), (k), (l ), (m), (n), and (o);  pp. 44–45, 47–48, 50.) 1

For purposes of appellate review, the State has conceded that the challenged appropriations from the Health Education Account and the Research Account were not spent on the health education programs and research subjects mandated by section 30122(b).   Instead, these appropriations were used to pay for medical services for indigents, primarily children.   Thus, the State has conceded that it has appropriated moneys from the Health Education Account and the Research Account, through AB 816, in ways that would violate the Act as passed by the voters.   These challenged appropriations have also apparently reduced the percentages of the Fund going to the Health Education Account and to the Research Account and increased the percentages of the Fund going to the accounts covering  medical services for indigents;  this would violate section 30124(b) specifying that 20 percent of the Fund is to go to the Health Education Account and 5 percent to the Research Account.

The State contends, however, that it has substantively amended the Act via AB 816, and that the challenged appropriations are proper in light of this amendment.   Section 30130 allows the Legislature to amend the Act by a four-fifths vote of each house.   AB 816 met this vote requirement.   Section 30130 also requires that “[a]ll amendments ․ be consistent with [the Act's] purposes.”  (§ 30130.)

DISCUSSION

 The challenged language in AB 816 follows a particular format, an example of which is as follows:

“SEC. 53.  For the 1994–95 fiscal year, the sum of three hundred ninety-six million one hundred fifty-eight thousand dollars ($396,158,000) is appropriated from the Cigarette and Tobacco Products Surtax Fund ․ according to the following schedule:

“․

“(b) Seventy million eight hundred ninety-nine thousand dollars ($70,899,000) from the Health Education Account to the State Department of Health Services, as follows:  [Partly to pay for certain medical care programs for indigents].

“․

“(m) Five million dollars ($5,000,000) from the Research Account [to a medical care program for indigents].

“․

“(p) Eleven million dollars ($11,000,000) from the Research Account [to another medical care program for indigents].”  (See 1994 Stats., c. 195, § 53(b)(3), (b)(5), (j), (k), (l ), (m), (n), (o), and (p).)   Similar language is used in AB 816 to cover the 1995–1996 fiscal year.  (§ 54(b)(3), (b)(5), (k), (l ), (m), (n), and (o).)

Viewed simply as an appropriations measure, AB 816 is legally invalid because an appropriations statute naturally must align with the substantive legislation which authorizes the appropriation.   As we have noted, AB 816  does not align with section 30122(b) (specifying how the account funds must be spent) or with section 30124(b) (specifying the percentages of the Fund each account is to receive).  Sections 30122(b) and 30124(b) are substantive provisions of the Act authorizing appropriations.

 The State argues, however, that AB 816 constitutes an attempt by the Legislature to amend the Act substantively and that this amendment is consistent with the purposes of the Act. The Legislature is permitted to amend the Act, so long as the amendment receives the required four-fifths votes and is consistent with the purposes of the Act.  (§ 30130;  Cal. Const., art. II, § 10, subd. (c).)  In effect, the State argues that AB 816 has amended the account percentages set forth in section 30124(b) by reducing the percentages of the Fund going to the Health Education and the Research Accounts and increasing the percentages of the Fund going to the accounts covering medical services for indigents.   As the starting point for this argument, the State notes that the Legislature passed AB 816 by meeting the four-fifths vote requirement of section 30130.   This view is supported by language appearing in the legislative history which described AB 816 as an “Urgency statute. 4/545 vote required (Amends Proposition 99)”.  (AB 816, Proposed Conference Report No. 1, July 6, 1994, p. 1.) As we shall explain, if AB 816 constitutes an attempt to substantively amend the Act, it runs afoul of the re-enactment rule.

The re-enactment rule is set forth in article IV, section 9 of the California Constitution, which provides in pertinent part:  “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 purpose of the re-enactment rule was explained a century ago in Hellman v. Shoulters (1896) 114 Cal. 136, 44 P. 915 (Hellman ).   That purpose is to avoid “the enactment of statutes in terms so blind that legislators themselves [are] sometimes deceived in regard to their effect, and the public, from the difficulty of making the necessary examination and comparison, fail[s] to become appraised [sic] of the changes made in the laws.”  (Hellman, supra, 114 Cal. at p. 152, 44 P. 915, internal quotations omitted;  Huening v. Eu (1991) 231 Cal.App.3d 766, 773, 282 Cal.Rptr. 664.)

As noted, the State argues that AB 816's redirection of funds amended section 30124(b) by reducing the 20 percent allocation to the Health Education Account and the 5 percent allocation to the Research Account and correspondingly increasing the percentage allocations to the accounts covering medical services for indigents.

  However, if one looks for these changes to section 30124(b) in the logical spot—in the section itself—they will be disappointed.   Section 30124(b) reads exactly the same after AB 816 as it did before AB 816.   In short, section 30124(b), with its purported amendments from AB 816, was not reenacted with those amendments.   The re-enactment rule “applies clearly to acts which are in terms ․ amendatory of some former act.”   (Pennie v. Reis (1889) 80 Cal. 266, 270, 22 P. 176.)   Under the State's argument, AB 816 amended section 30124(b) through the stated redirections from the Health Education and Research Accounts to the medical programs for indigents.   Under this argument, then, AB 816 was “in terms ․ amendatory of some former act,” and as such, in violation of the re-enactment rule.

 The State contends the re-enactment rule applies only where a statute is amended by striking out or inserting certain words, phrases or clauses.   (See Fletcher v. Prather (1894) 102 Cal. 413, 418, 36 P. 658;  Hellman, supra, 114 Cal. at pp. 152–153, 44 P. 915;  People v. Western Fruit Growers (1943) 22 Cal.2d 494, 500–501, 140 P.2d 13;  see also Yoshisato v. Superior Court (1992) 2 Cal.4th 978, 989–990, 9 Cal.Rptr.2d 102, 831 P.2d 327.)   The key to the re-enactment rule's applicability, however, does not turn on a particular method of amendment but on whether legislators and the public have been reasonably notified of direct changes in the law.  (Hellman, supra, 114 Cal. at p. 152, 44 P. 915;  Huening v. Eu, supra, 231 Cal.App.3d at p. 773, 282 Cal.Rptr. 664;  see Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1096, 240 Cal.Rptr. 569, 742 P.2d 1290.)   In fact, neither Fletcher (upon which Western Fruit Growers relies) nor Hellman takes such a limited approach.  Fletcher notes that an act “might be” amended in these ways, while Hellman mentions these methods simply in passing.  (Fletcher, supra;  Hellman, supra.)

This limited view of the re-enactment rule, moreover, flies in the face of public policy, good government and common sense.   The underlying purpose of the re-enactment rule is to make sure legislators are not operating in the blind when they amend legislation, and to make sure the public can become apprised of changes in the law.  (Hellman, supra, 114 Cal. at p. 152, 44 P. 915.)   An expressly-stated amendatory fragment, which indisputably is within the reach of the re-enactment rule, certainly offers more in the way of notice of an amendment than does the cryptic language and uncodified context of AB 816.

 It is true the re-enactment rule does not apply to the addition of new code sections or the enactment of entirely independent acts that impliedly affect other code sections.  (Hellman, supra, 114 Cal. at pp. 151–153, 44 P. 915;  Johnson v. City of Glendale (1936) 12 Cal.App.2d 389, 393, 55 P.2d 580.)   These  exceptions to the re-enactment rule are needed because “[t]o say that every statute which thus affects the operation of another is therefore an amendment of it would introduce into the law an element of uncertainty which no one can estimate.   It is impossible for the wisest legislator to know in advance how every statute proposed would affect the operation of existing laws.”  (Hellman, supra, 114 Cal. at p. 152, 44 P. 915.)

But AB 816 is an appropriations measure for the Act;  AB 816 mentions by name the Fund and accounts within it.  (Stats.1994, c. 195, §§ 53, 54, pp. 44, 47–48, 50.)   By its terms, AB 816 redirects moneys from the Fund's Health Education and Research Accounts to programs paying for medical care for indigents.   Against this backdrop, a conclusion that AB 816 violates the re-enactment rule does not disrupt orderly legislative processes or inject the judiciary impermissibly into the legislative realm.

Apparently, there are no California decisions involving an alleged substantive amendment like AB 816.   However, the Washington Supreme Court has dealt with a strikingly similar situation.   In Flanders v. Morris (1977) 88 Wash.2d 183, 558 P.2d 769, an uncodified appropriations bill for a public assistance program added an age restriction to the other statutory restrictions without changing the language of the relevant statute.

The Flanders court concluded that the appropriations bill violated Washington's re-enactment rule, which stated, like California's:  “No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.”  (Wash. Const., art. 2, § 37;  see Flanders, supra, 558 P.2d at p. 771.)   The court in Flanders noted that previous decisions had set forth the following reason for the re-enactment rule:

“The [rule] was undoubtedly framed for the purpose of avoiding confusion, ambiguity, and uncertainty in the statutory law through the existence of separate and disconnected legislative provisions, original and amendatory, scattered through different volumes or different portions of the same volume.   Such a provision, among other things, forbids amending a statute simply by striking out or inserting certain words, phrases, or clauses, a proceeding formerly common, through which laws became complicated and their real meaning often difficult of ascertainment.   The result desired by such a provision is to have in a section as amended a complete section, so that no further search will be required to determine the provisions of such section as amended.”  (558 P.2d at p. 773.)

To this reason the Flanders court added another related one:

“Another important purpose of Const. art. 2, § 37, not mentioned above, is the necessity of insuring that legislators are aware of the nature and content of  the law which is being amended and the effect of the amendment upon it.  [¶] For 37 years, the statutory law of this state has provided for public assistance on the basis of need with no age restriction.   The new restriction is clearly an amendment to [the relevant statute], adding to the restrictions already enumerated there.   However, the statute will never reflect this change but will continue to read as it always has, with no age restriction.   One seeking the law on the subject would have to know one must look under an ‘appropriations' title in the uncodified session laws to find the amendment.   The fact that the [appropriations] bill is not codified strikes at the very heart and purpose of Const. art. 2, § 37.”  (558 P.2d at p. 774, italics in original, citation omitted.)

We could not have said it any better.   If AB 816 amends the percentages set forth in section 30124(b) or makes any other substantive amendment to the Act, it violates the re-enactment rule.

DISPOSITION

The judgment is affirmed.

I concur in the opinion and the judgment.

I write separately to emphasize the speciousness of the State's argument.   The State claims that it has amended an initiative statute by passing legislation in conflict with it, a patent absurdity.

The 1988 tobacco tax initiative (the Act) specifies the percentages of the fund it creates that may be appropriated for specified purposes from its accounts.  (Rev. & Tax.Code, §§ 30122, 30124.) 2  The State concedes that AB 816 appropriates money in amounts that exceed the percentage limitations of section 30124 without amending the section, i.e., it concedes the Legislature violated the Act.   Notwithstanding, the State baldly asserts that AB 816 amends the Cigarette and Tobacco Products Surtax Fund because it satisfies the four-fifths vote requirement of the initiative and is consistent with its purposes.  (§ 30130.)   The State is utterly confused on a simple point of law.

There is only one means of amending a statutory enactment.  “A section of a statute may not be amended unless the section is re-enacted as amended.”   (Cal. Const., art. IV, § 9.) This requires that the change be shown in the  language of the affected statute.   That did not occur here.   Whether the Legislature intended to amend section 30124 is immaterial;  it did not do so.   The road to illegality is paved with such intentions.

Failing an amendment, the State seeks refuge in the doctrine of amendment by implication.   The purpose of the doctrine is to resolve conflicts in enactments of equal legal status, not to provide another means of “amendment.”   It expresses the rule that a later enactment may prevail over an earlier, conflicting enactment of the same legal status in respects the conflict.   The rule does not apply where the later enactment is legally subordinate to the earlier enactment, that is, where a conflict is ruled out by the superior legal status of the earlier enactment.

The Act has superior legal status for two independent reasons.   First, the Act creates the tobacco tax fund and directs the amounts which may be appropriated from the fund.   Second, since the Act was enacted as an initiative statute, which has superior legal status to ordinary legislation, no legislative enactment may conflict with it.  (Cal. Const., art. II, § 10(c).)   The sole means of change is an amendment which meets the requirements of the Act. (Ibid.;  § 30130.)

FOOTNOTES

1.   AB 816 encompassed many other matters aside from these challenged appropriations.  (Stats.1994, c. 195, p. 1.) Those other matters are not at issue in this appeal.   For convenience, when we refer to “AB 816” we will be referring only to that part of AB 816 that made the challenged appropriations from the Health Education Account and the Research Account.

2.   All references to a section are to the Revenue and Taxation Code.

DAVIS, Associate Justice.

SCOTLAND, J., concurs.