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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION : 

: No. 92-104 

of : 

: MARCH 31, 1992 

DANIEL E. LUNGREN : 

Attorney General : 

:
 ANTHONY S. DaVIGO :
 Deputy Attorney General :
 

: 

This office has been requested to grant leave to sue in quo warranto upon the 

following: 

ISSUES OF FACT OR LAW 

1. Is quo warranto an appropriate remedy for testing the validity of a proposed 

statewide initiative? 

2. Would such an action be in the public interest (a) prior to the submission of

the initiative measure to the electorate, or (b) prior to the resolution of the same issues now pending

before the Public Employment Relations Board? 

DISPOSITION 

1. Quo warranto is not an appropriate remedy for testing the validity of a

proposed statewide initiative. 

2. Such an action would not be in the public interest (a) prior to the submission

of the initiative measure to the electorate, or (b) prior to the resolution of the same issues now

pending before the Public Employment Relations Board. 

PARTIES 

BRUCE J. BLANNING et al. ("relators") contend that PETE WILSON, Governor

of the State of California ("defendant") has exceeded his constitutional and statutory authority in

proposing a constitutional initiative without first engaging in collective bargaining negotiations with

recognized state employee organizations. 

1. 92-104
 
 

MATERIAL FACTS
 

Defendant has proposed an initiative denominated the "Government Accountability

and Taxpayer Protection Act of 1992," which would amend the Constitution and laws of California

in a manner which, for purposes of this opinion, would concededly affect the wages, hours, terms,

and conditions of employment of state employees. Defendant did not meet and confer with state 

employee organizations in connection with the proposed initiative. 

PRINCIPAL CONTENTIONS 

Relying upon Government Code section 3516.5,1 relators contend that defendant was 

obligated to meet and confer with them prior to proposing the initiative at issue. Section 3516.5 

provides as follows: 

"Except in cases of emergency as provided in this section, the employer shall

give reasonable written notice to each recognized employee organization affected by

any law, rule, resolution, or regulation directly relating to matters within the scope

of representation proposed to be adopted by the employer, and shall give such

recognized employee organizations the opportunity to meet and confer with the

administrative officials or their delegated representatives as may be properly

designated by law." 

Defendant contends that whether as Governor he should be constitutionally

authorized to affect state employee salaries in response to a fiscal emergency is a matter of

fundamental policy not within the scope of representation. In this regard, section 3516 provides as

follows: 

"The scope of representation shall be limited to wages, hours, and other terms

and conditions of employment, except, however, that the scope of representation

shall not include consideration of the merits, necessity, or organization of any service

or activity provided by law or executive order." 

ANALYSIS 

APPROPRIATE REMEDY 

The first issue to be addressed is whether a quo warranto proceeding would provide

an appropriate forum for examining the validity of a proposed statewide initiative. In 74 

Ops.Cal.Atty.Gen. 77, 78 (1991), we pointed out that quo warranto would be an appropriate remedy

by which to challenge the validity of a city or county charter. (See The People ex rel. Seal Beach 

Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 595; County of Santa Clara v. 

Hayes Co. (1954) 43 Cal.2d 615, 618; International Assn. of Fire Fighters v. City of Oakland (1985)

174 Cal.App.3d 687, 694; Oakland Mun. Imp. League v. City of Oakland (1972) 23 Cal.App.3d 165,

169.) 

Our attention has not been directed, however, to any precedent for the employment

of this remedy to test the validity of a proposed statewide initiative. The statutory authority for a

quo warranto action brought by the Attorney General is found in Code of Civil Procedure section

803 as follows: 

1

All section references hereafter are to the Government Code unless otherwise specified. 

2. 92-104
 
 

"An action may be brought by the attorney-general, in the name of the people

of this state, upon his own information, or upon a complaint of a private party,

against any person who usurps, intrudes into, or unlawfully holds or exercises any

public office, civil or military, or any franchise, or against any corporation, either de

jure or de facto, which usurps, intrudes into, or unlawfully holds or exercises any

franchise, within this state. . . ."2 

We find no basis in the above statute or in any judicial decision for the invocation

of a quo warranto action in connection with a challenge to the validity of a statewide initiative. (See, 

e.g., American Federation of Labor v. Eu (1984) 36 Cal.3d 687 [writ of mandate challenging

validity of proposed "Balanced Federal Budget Statutory Initiative"]; Legislature v. Deukmejian

(1983) 34 Cal.3d 658 [writ of mandate against Governor to restrain expenditure of public funds for

initiative to realign legislative and congressional districts]; Brosnahan v. Eu (1982) 31 Cal.3d 1 [writ

of mandate to prohibit placement of "The Victims' Bill of Rights" initiative on ballot]; Kevelin v. 

Jordan (1964) 62 Cal.2d 82 [mandamus to prohibit filing of statement of vote for "An Act to

Preserve Free Television in California"]; California Trial Lawyers Assn v. Eu (1988) 200

Cal.App.3d 351 [writ of mandate challenging validity of proposed "Insurance Cost Control Initiative

of 1988"].) 

The writ of quo warranto is not an appropriate remedy for the relief sought, and for

that reason alone, the application for leave to sue is DENIED. 

PUBLIC INTEREST 

Even assuming that quo warranto were an appropriate remedy, granting relators'

application would not, under the circumstances presented, be in the public interest. In this regard,

leave to sue will be granted where there is a substantial question of law or fact which requires

judicial resolution, and where the action in quo warranto would serve the overall public interest.

(75 Ops.Cal.Atty.Gen. 10, 11 (1992).) 

A. Prior to Passage by Electorate 

Judicial action to test the validity of an initiative measure in the midst of the electoral

process is not favored. In Mulkey v. Reitman (1966) 64 Cal.2d 529, for example, in considering the

constitutionality of an initiative measure, the court noted that it had previously ruled "`it would be

more appropriate to pass on those questions after the election . . . than to interfere with the power

of the people to propose laws and amendments to the Constitution and to adopt or reject the same

at the polls . . . .'" (Id. at 535; see Wind v. Hite (1962) 58 Cal.2d 415, 417.) 

In Kevelin v. Jordan, supra, 62 Cal.2d 82, the court held that, regardless of how

clearly an initiative measure's unconstitutionality may appear, it would be an intolerable interference

with the people's reserved legislative power to prevent the official recordation of their vote on such

a proposition by the Secretary of State, and consequently a writ of mandate directing the Secretary

of State not to file a statement of the vote was denied without prejudice to the right to challenge the

measure's constitutionality after it went into effect. (Id. at 83; see Brosnahan v. Eu, supra, 31 Cal.3d 

at 4.) 

2

Although the writ of quo warranto was abolished in California in 1872, we and the courts

continue to use the term "quo warranto" for convenience in describing the action authorized by Code

of Civil Procedure section 803. (See International Assn. of Fire Fighters v. City of Oakland, supra,

174 Cal.App.3d at 693, fn. 10.) 

3. 92-104
 
 

 

While judicial deference to the electoral process is neither universal nor jurisdictional 

(see Citizens for Responsible Behavior v. Superior Court (1991) 1 Cal.App.4th 1013, 1021-1023

[proposed ordinance both substantively invalid and beyond the power of the electorate to enact];

California Trial Lawyers Assn. v. Eu, supra, 200 Cal.App.3d at 357 [single subject violation "may

not be submitted to electors"; Cal. Const., art. II, § 8, subd. (d)]), if an action were authorized at this

stage of the electoral process to challenge the initiative in question, the court would, in our view,

reach the same result as in Mulkey and Kevelin. 

B. Prior to Resolution of Pending Administration Proceeding 

We are advised that the same issues sought to be presented to a court by the relators'

application here are now pending in a proceeding before the Public Employment Relations Board.

Specifically, the underlying issue whether defendant was required to meet and confer with state

employee organizations prior to proposing this statewide initiative measure was appealed to the

board and is now pending. It is obvious that the board has initial or primary, if not exclusive,

jurisdiction in the premises over what is essentially a charge of unfair labor practice. (§ 3514.5; San 

Jose Teachers Assn. v. Superior Court (1985) 38 Cal.3d 839, 863; Pacific Legal Foundation v.

Brown (1981) 29 Cal.3d 168, 198; San Diego Teachers Association v. Superior Court (1979) 24

Cal.3d 1.)3 

While the availability of alternative remedies does not always preclude an action in

quo warranto as a matter of law (see Citizens Utilities Co. v. Superior Court (1976) 56 Cal.App.3d

399, 404-405), we have considered the existence of such alternatives in the context of the public

interest (74 Ops.Cal.Atty.Gen. 31, 32 (1991); 12 Ops.Cal.Atty.Gen. 340, 342 (1949)). Where such 

alternatives have been undertaken, we do not deem it within the public interest to try the same issues

in multiple proceedings. (74 Ops.Cal.Atty.Gen., supra, at 32; 73 Ops.Cal.Atty.Gen. 188, 190

(1990).) 

It is determined that the application for leave to sue should be and is hereby 

DENIED. 

* * * * * 

3

The board's construction of a statutory provision falling squarely within its legislatively

designated field of expertise is to be regarded with deference by a court and will generally be

followed unless clearly erroneous. (Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29

Cal.3d 848, 859; People v. McGee (1977) 19 Cal.3d 948, 961; 72 Ops.Cal.Atty.Gen. 25, 29, fn. 4 

(1989).) 

4. 92-104