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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) prio r 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 pub lic 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 ex ceeded his constitutional and statutory authority in proposing a constitutional initiative w ithout first engaging in collective bargaining negotiations with recognized state employee organizations.

1. 92-104MATERIAL FACTS Defendant has proposed an initiative denominated the "Government Accountability and Taxpayer Protection Act of 1992," which would amend the Cons titution and laws of California in a manner which, for purposes of this opinion, w ould 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 provi ded in this section, the employer shall give reasonable written notice to each rec ognized employee organization affected by any law, rule, resolution, or regulation dir ectly relating to matters within the scope of representation proposed to be adopted by the employer, and shall give such recognized employee organizations the opport unity 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 repres entation. 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, how ever, 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 wh ether a quo warranto proceeding would provide an appropriate forum for examining the validity of a proposed statew ide initiative. In 74 Ops.Cal.Atty.Gen. 77, 78 (1991), we pointed out that quo warranto w ould 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 validit y 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 franch ise, or against any corporation, either de jure or de facto, which usurps, intrudes in to, 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 Vi ctims' 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 ch allenging 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 presente d, 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 th e 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 unc onstitutionality may appear, it would be an intolerable interference with the people's reserved legislative power to pr event the official recordation of their vote on such a proposition by the Secretary of State, and conseque ntly a writ of mandate directing the Secretary of State not to file a statement of the vote was denied without prej udice 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 abolishe d in California in 1872, we and the courts continue to use the term "quo warranto" for conve nience 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. 92-104While judicial deference to the electoral pr ocess 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 a nd beyond the power of the electorate to enact]; California Trial Lawyers Assn. v. Eu, supra, 200 Cal.App.3d at 357 [singl e 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 th e board has initial or primary, if not exclusive, jurisdiction in the premises over what is essentia lly 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 c ourt 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 Op s.Cal.Atty.Gen. 25, 29, fn. 4 (1989).)

4. 92-104