Gerken v. Fair Political Practices Commission

863 P.2d 694, 6 Cal. 4th 707, 25 Cal. Rptr. 2d 449, 93 Cal. Daily Op. Serv. 9434, 93 Daily Journal DAR 16121, 1993 Cal. LEXIS 6367

• Court: California Supreme Court
• Decided: December 20, 1993
• Docket: S025815
• Status: Published

Opinions

Opinion

LUCAS, C. J.

Propositions 73 (Gov. Code, tit. 9, ch. 5, art. 1 et seq.)¹ and 68 (ibid.), both designed to implement campaign contribution reform, were each approved by the voters at the June 1988 Primary Election. The former garnered more affirmative votes than the latter. In Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744 [274 Cal.Rptr. 787, 799 P.2d 1220] (hereafter Taxpayers), we held that under California Constitution, article II, section 10, subdivision (b), “when two or more measures are competing initiatives, . . . only the provisions of the measure receiving the highest number of affirmative votes [can] be enforced.” (51 Cal.3d at p.- 747.) Accordingly, we declined to “merge” the two measures, and instead held that Proposition 73 was effective and that Proposition 68 was inoperative. (Id., at pp. 770-771.) At the conclusion of our opinion, we observed in a footnote:

“The United States District Court has recently restrained enforcement of the Proposition 73 restrictions on campaign contributions and transfers thereof. (Service Employees v. Fair Political Practices (E.D.Cal. 1990) 747 F.Supp. 580 [Service Employees I].) That decision is not final, however, and does not invalidate the remainder of Proposition 73. [¶] For that reason, we need not decide in this proceeding whether an initiative measure that has no effect at the time it is adopted because it is superseded by another measure adopted by a larger vote at the same election becomes effective if the latter is subsequently invalidated. (Cf. Corning Hospital District v. Superior Court (1962) 57 Cal.2d 488, 494 [20 Cal.Rptr. 621, 370 P.2d 325].)” (Taxpayers, supra, 51 Cal.3d at p. 771, fn. 13, italics added.)

In this original mandamus proceeding (Cal. Const., art. VI, § 10; Cal. Rules of Court, rule 56(a)), petitioners² raise the issue reserved in Taxpayers: Noting that the Ninth Circuit Court of Appeals has affirmed the district court decision cited above (see Service Emp. Intern, v. Fair Political Prac. Com’n (9th Cir. 1992) 955 F.2d 1312 [(hereafter Service Employees II]), and that the high court has denied certiorari review of that judgment (_U.S._[120 L.Ed.2d 922, 112 S.Ct. 3056]), petitioners assert Proposition 73 has been invalidated, and Proposition 68 should be revived by operation of law.

We issued an alternative writ.³ Thereafter respondents⁴ advised us that they would take no position on the merits of the suit. We subsequently permitted the State of California, represented by the Attorney General, to intervene, and we allowed participation as amici curiae in opposition to petitioners by legislators, labor unions, and a lobbying group,⁵ as well as the state Republican and Democratic parties.

For reasons explained below, we conclude Proposition 73 remains effective in substantial part; accordingly, it has not been “invalidated” as we used that term in Taxpayers, supra, 51 Cal.3d at page 771, footnote 13. It follows that, as we held in Taxpayers, supra, Proposition 68 remains inoperative. Hence, we will discharge the order to show cause, and deny the writ.

I. Background

Taxpayers, supra, 51 Cal.3d at pages 748-755, describes in detail the competing schemes set out in Propositions 73 and 68. Briefly, Proposition 73 proposed to impose limits on campaign contributions for all elective offices; prohibit the use of public funds for campaign expenditures; and prohibit elected officials from spending public funds on newsletters and mass mailings. (See Taxpayers, supra, 51 Cal.3d at pp. 749-751.) Proposition 68, by contrast, proposed to impose contribution limitations on state legislative candidates, and further proposed to impose expenditure limitations on those qualified candidates who elected to receive partially state-funded matching funds. (See Taxpayers, supra, 51 Cal.3d at pp. 751-754.) As noted above, we held in Taxpayers that because the two schemes were presented to the voters as alternative, competing measures, only Proposition 73, which received the higher number of affirmative votes, was effective.

Shortly before we filed our opinion in Taxpayers, the federal district court considered challenges to, inter alia, three key sections of the “contribution limitations” provisions of Proposition 73. (Service Employees I, supra, 1A1 F.Supp. 580.) The plaintiffs in that litigation asserted that because the contribution limitations of Proposition 73 (§§ 85301-85303) are measured on a fiscal year instead of an “election cycle” basis, they unconstitutionally discriminate in favor of incumbents and their supporters and against challengers and their supporters. The various other parts of Proposition 73 (described below) were not challenged.

The district court found the fiscal year provisions of Proposition 73 unconstitutional under the First Amendment. (Service Employees I, supra, 747 F.Supp. at p. 590.) It next addressed the state law issue of whether those provisions might be severed from the contribution limitations themselves, and concluded that the statutes could not be saved. (Ibid.) Accordingly, it struck the contribution limitations and permanently enjoined their enforcement. (Id., at p. 593.) Thereafter, as noted above, the Ninth Circuit Court of Appeals affirmed the judgment of the district court, and the high court denied certiorari review. On the federal constitutional issue, the Ninth Circuit agreed with the district court, and found the statutes as enacted violate the First Amendment. (Service Employees II, supra, 955 F.2d at p. 1320. ) On the state law issue of whether the statutes might be saved by a construction that would eliminate the constitutional problems consistently with the voters’ intent, the Ninth Circuit also agreed with the district court that sections 85301-85303 cannot be saved or reformed. (955 F.2d at p. 1321. )⁶

The primary provisions of Proposition 73 that are not subject to the federal injunction are these:

Rules regarding solicitation and use of funds.

Section 85200 requires that candidates file a written statement of intent to run for office before soliciting contributions, and section 85201 requires that candidates deposit campaign funds into a single “campaign contribution account,” and that all campaign expenditures be made from that account. In addition, section 85202, which was repealed (Stats. 1990, ch. 84, § 3) and reenacted, as amended, as section 89510, provides, inter alia, that contributions to a campaign are held in trust for use in election to the office stated in section 85200.

Prohibition on public funding.

Section 85300 provides, “No public officer shall expend and no candidate shall accept any public moneys for the purpose of seeking elective office.”

Rules for special elections.

Section 85305 establishes contribution limits in special elections, and section 85304 (insofar as it applies to special elections) bans transfer of funds between candidates.

Regulation of honoraria.

Former section 85400, which regulated gifts and honoraria, was repealed (Stats. 1990, ch. 84, § 3.5) and reenacted, as amended, as section 89502, which provides: “(a) No elected state officer may accept an honorarium.”

Prohibition on publicly funded newsletters and mass mailings.

Section 89001 provides, “No newsletter or other mass mailing shall be sent at public expense.”

II. Analysis

Petitioners assert that because Proposition 73’s contribution limitations (insofar as they apply to primary and general elections) have been invalidated and their enforcement enjoined, the remaining parts of Proposition 73, which are not subject to the injunction, are likewise unenforceable because they are nonseverable from the invalidated portions of the measure.⁷ In other words, petitioners claim Proposition 73 has been invalidated in its entirety as a result of the federal injunction.

Although the various amici curiae on behalf of respondents contest petitioners’ severability argument, intervener State of California declines to do so, and instead asserts we should defer any severability analysis until we are first satisfied that the provisions of Proposition 73 enjoined by the federal courts are “in fact” unconstitutional and void. Intervener contends we should not assume, merely because the federal courts have enjoined enforcement of Proposition 73’s campaign contribution limitations, that those provisions are in fact unconstitutional. To this end, intervener has filed both a demurrer (Code Civ. Proc., § 1089; Cal. Rules of Court, rule 56(e)) and an answer to the petition, in which it asserts that under the separation of powers doctrine, the federal court judgments “cannot have the legislative effect of enabling Proposition 68 as the governing statutory scheme.”

We decline intervener’s suggestion that we should inquire into the correctness of the federal courts’ constitutional analysis because, as explained below, even assuming Proposition 73’s contribution limitations are “in fact” unconstitutional, we would not grant the relief prayed for by petitioners, in light of our application of the severability principles next discussed.⁸

A. The severability doctrine

Proposition 73 contains a severability clause that provides; “If any provision of this act, or the application of any such provision to any person or circumstances, shall be held invalid, the remainder of this act to the extent it can be given effect, or the application of those provisions to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby, and to this end the provisions of this act are severable.” (Prop. 73, § 4.)

As we recently stated in Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821 [258 Cal.Rptr. 161, 771 P.2d 1247] {Calfarm), “ ‘Although not conclusive, a severability clause normally calls for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable. . . .’” And yet, we noted, “‘[s]uch a clause plus the ability to mechanically sever the invalid part while normally allowing severability, does not conclusively dictate it. The final determination depends on whether the remainder ... is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidity of the statute . . . or constitutes a completely operative expression of legislative intent. . . [and is not] so connected with the rest of the statute as to be inseparable. . , . ’” (Ibid., italics added; see also Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 331 [118 Cal.Rptr. 637, 530 P.2d 605] [Santa Barbara].)

“The cases prescribe three criteria for severability: the invalid provision must be grammatically, functionally, and volitionally separable.” (Calfarm, supra, 48 Cal.3d at p. 821; see Santa Barbara, supra, 13 Cal.3d 315, 331.) Petitioners concede the various remaining parts of Proposition 73 meet the first two parts of this test. They focus exclusively on the third aspect of the above test, which has been characterized as follows: “[T]he provisions to be severed must be so presented to the electorate in the initiative that their significance may be seen and independently evaluated in the light of the assigned purposes of the enactment. The test is whether it can be said with confidence that the electorate’s attention was sufficiently focused upon the parts to be servered so that it would have separately considered and adopted them in the absence of the invalid portions.” (People’s Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d 316, 332-333, italics added.) We briefly review the prior cases in order to illustrate how the third part of the severability test has been applied.

Santa Barbara, supra, 13 Cal.3d 315, concerned Proposition 21, enacted in the 1972 General Election. The measure was designed to curtail forced school busing. We held that one provision of the measure, which “forced . . . the local school districts [to embrace the] neighborhood school concept” and barred forced busing, was unconstitutional. (13 Cal.3d at p. 331.) We further held, however, that a second provision, which repealed a statutory commitment to achieve racial balance in schools, and which left local school districts “with sole responsibility and without direction other than constitutional mandate” (ibid.), was severable and enforceable. We concluded: “Even though [the] restriction of local school district discretion is unconstitutional and therefore the full purpose of Proposition 21 cannot be realized, it seems eminently reasonable to suppose that those who favored the proposition would be happy to achieve at least some substantial portion of their purpose, namely to eliminate a state commitment to racial balance in the schools regardless of other considerations, and thereby to allow local control subject only to constitutional restriction.” (Id., at pp. 331-332, italics added.) Santa Barbara stands for the proposition that if a part to be severed reflects a “substantial” portion of the electorate’s purpose, that part can and' should be severed and given operative effect.

Thereafter, in Metromedia, Inc. v. City of San Diego (1982) 32 Cal. 3d 180 [185 Cal.Rptr. 260, 649 P.2d 902], we considered a city ordinance banning off-site billboards. We noted the ban was unconstitutional as applied to noncommercial billboards (id., at p. 182), and rejected the suggestion that the invalid portion should be severed from the balance of the measure, so that the ordinance would apply only to commercial on-site billboards. We explained it was “doubtful whether the purpose of the original ordinance is served by a truncated version limited to commercial signs” (id., at p. 190), and we noted that it appeared the local government might actually prefer a wholly separate alternative scheme if it were to start anew with the understanding that it lacked authority to ban noncommercial advertising. (Id., at pp. 190-191.)

People’s Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d 316, concerned whether generally valid provisions of an initiative requiring public reports regarding the Legislature’s use of its contingent fund could be severed from an invalid restriction on the amount of that fund. The court concluded the reporting provisions were severable, in part because the initiative set out “anti-secrecy” policy arguments that supported the public reports requirement, separate and distinct from the arguments related to the invalid contingency fund restrictions. Because the two policies were so clearly distinguished, the court concluded that “sufficient attention was drawn to the issue of secrecy to identify it as worthy of independent consideration.” (Id., at p. 333.)

More recently, in Calfarm, supra, 48 Cal.3d 805, we held unconstitutional a key provision of Proposition 103, a measure designed to institute insurance reform. The challenged provision illegally precluded rate adjustments necessary to allow the insurer a fair rate of return. We concluded the invalid provision was severable from the balance of the measure: The “remainder of the initiative . . . would likely have been adopted by the people had they foreseen the invalidity of the [provision illegally restricting rate adjustments]. The voters who enacted Proposition 103 would presumably prefer rate setting and regulation under the balance of the initiative to the method of setting insurance rates which existed before the initiative was enacted. There is no persuasive reason to suppose the [invalid provision] was so critical to the enactment of Proposition 103 that the measure would not have been enacted in its absence.” (48 Cal.3d at p. 822; see also Legislature v. Eu (1991) 54 Cal.3d 492, 534-535 [286 Cal.Rptr. 283, 816 P.2d 1309] [severing invalid pension limitation from initiative measure]; Raven v. Deukmejian (1990) 52 Cal.3d 336, 355-356 [276 Cal.Rptr. 326, 801 P.2d 1077] [severing invalid constitutional revision from initiative measure].)

With these examples of severability analysis in mind, we turn to the essential question posed in this case: Has Proposition 73 been “invalidated” by the federal injunction against enforcement of the contribution limitation provisions of that measure?

B. The ban on publicly funded mass mailings

Although petitioners and amici curiae on behalf of respondents focus their briefing predominantly on whether section 85300 (the ban on public financing of election campaigns) is severable from the enjoined provisions of Proposition 73, and although we suggested in Johnson v. Bradley (1992) 4 Cal.4th 389, 401 [14 Cal.Rptr.2d 470, 841 P.2d 990], that we would address that question in this litigation, on further review we find it unnecessary to do so in order to resolve petitioners’ claim.

As noted above, in Taxpayers, supra, 51 Cal.3d at page 771, footnote 13, we left undecided “whether an initiative measure that has no effect at the time it is adopted because it is superseded by another measure adopted by a larger vote at the same election becomes effective if the latter is subsequently invalidated. . . .” (Italics added.) As a predicate to their claim that all or part of Proposition 68 should be revived, petitioners must establish that Proposition 73 has been “invalidated,” i.e., that no substantial part of the measure remains effective. If any substantial part of Proposition 73 remains effective despite the federal injunction, petitioners’ claim of revival of Proposition 68, in whole or in part, must fail.

It follows that we need not decide the viability of each remaining section of Proposition 73 in order to resolve petitioners’ writ application; we can resolve this litigation by finding that at least one substantial part of Proposition 73 is severable and operative. As explained below, the section that most clearly and easily meets this requirement is section 89001, the ban on publicly funded mass mailings. Accordingly (and because, as explained above, petitioners’ claim must fail if any substantial part of Proposition 73 survives), we proceed to consider whether section 89001 is severable from the invalidated provisions under the analysis set out in Santa Barbara, supra, 13 Cal.3d 315, and its progeny.

As noted above, petitioners concede section 89001’s ban on public funding of mass mailings is gramatically and functionally separate from the contribution limits enjoined by the federal courts. The question is whether the ban is also volitionally separate from the enjoined provisions. We conclude it is.

Because Proposition 73 contains no express policy statement or declaration of purpose, we must look to the initiative measure’s text and the ballot materials for guidance concerning whether the ban on publicly funded mass mailings was presented to the voters as something separate and distinct from the contribution limits, so that its “significance may be seen and independently evaluated in the light of the assigned purposes of the enactment.” (People’s Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at p. 333.) We begin by reviewing the official statements made to the voters about Proposition 73. (Taxpayers, supra, 51 Cal.3d at p. 749, fn. 5.)

The ban on publicly funded mass mailings was separately highlighted for the voters as one of the goals that would be met by passage of Proposition 73. The “Official Title and Summary Prepared by the Attorney General” stated: “Campaign Funding. Contribution Limits. Prohibition of Public Funding Initiative Statute. Limits annual political contributions to a candidate for public office .... Permits stricter local limits. Limits gifts and honoraria to elected officials .... Prohibits transfer of funds between candidates or their controlled committees. Prohibits sending newsletters or other mass mailings, as defined, at public expense. Prohibits public officials using and candidates accepting public funds for purpose of seeking elective office.....” (Ballot Pamp., Prop. 73, Primary Elec. (June 7, 1988) p. 32, italics added.)

Thereafter the Legislative Analyst specifically listed the ban on publicly funded mass mailings as one of the three main goals of the initiative: “In summary, this measure: [¶] • Establishes limits on campaign contributions for all candidates for state and local elective offices; [¶] • Prohibits the use of public funds for these campaign expenditures; and [¶] • Prohibits state and local elected officials from spending public funds on newsletters and mass mailings.” (Ballot Pamp., Prop. 73, Primary Elec., supra, p. 32.) The analyst described the primary provisions of the measure, and again highlighted the ban on publicly funded mass mailings: “Newsletters and Mass Mailings [¶] Public funds cannot be used by state and local elected officials to pay for newsletters or mass mailings.” (ibid.)

Finally, the analyst emphasized the anticipated savings that would result from the ban on publicly funded mass mailings. In a passage entitled “Fiscal Effect,” the voters were told that increased administrative costs associated with the measure (“about $1.1 million a year”) would be offset by “annual savings of about $1.8 million resulting from the prohibition on the expenditure of public funds for newsletters and mass mailings. [¶] Local government agencies would also experience unknown annual savings. These savings would result primarily from the prohibition on public expenditures for newsletters and mass mailings.” (Ballot Pamp., Prop. 73, Primary Elec., supra, p. 33.)

The text of the measure followed, divided into four sections. Nothing therein suggests that the ban on publicly funded mass mailings is dependent on the existence of the enjoined contribution limitations, or any other provision of the measure. (Ballot Pamp., Prop. 73, Primary Elec., supra, pp. 33 & 63.) Section 1 established, inter alia, the contribution limitations enjoined by the federal courts. Section 4 set out the severability clause quoted, ante, at page 714. Sections 2 and 3 concerned mass mailings.

Section 2 of Proposition 73 amended Government Code section 82041.5 to expand the definition of “mass mailing.”⁹ Section 3 amended Government Code section 89001 to flatly preclude publicly funded newsletters or mass mailings: “No newsletter or mass mailing shall be sent at public expense.”

The ballot arguments followed. (Ballot Pamp., Prop. 73, Primary Elec., supra, pp. 34-35.) As petitioners note, the debate focused on the relative merits of the competing campaign contribution reform schemes offered to the voters in Propositions 73 and 68, with specific emphasis on the wisdom of committing public money to fund election campaigns. The arguments did not expressly address the proposed public funding ban on mass mailings.

Viewing the ballot materials as a whole, we conclude the ban on publicly funded mass mailings was sufficiently highlighted “to identify it as worthy of independent consideration.” (People’s Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at p. 333.) We can “sa[y] with confidence that the electorate’s attention was sufficiently focused upon the [ban on public funding of mass mailings] so that it would have separately considered and adopted [that ban] in the absence of the [enjoined] portions.” (Ibid.) As we noted in Santa Barbara, supra, 13 Cal.3d at pages 331-332, “Even though . . . the full purpose of Proposition [73] cannot be realized, it seems eminently reasonable to suppose that those who favor the proposition would be happy to achieve at least some substantial portion of their purpose, namely to eliminate” public funding of mass mailings. (See also City of Woodlake v. Logan (1991) 230 Cal.App.3d 1058, 1070 [282 Cal.Rptr. 27] [“[although the [invalid] provisions . . . may have been the heart of Proposition 62, some substantive provisions remain,” and should be enforced in order to effectuate the voters’ intent].)

It follows that section 89001 remains effective despite (and regardless of) the federal injunction against enforcement of Proposition 73’s campaign contribution provisions. It is also clear that, although the ban on public funding of mass mailings was not the “heart” or “dominant purpose” of the measure, it was a substantial feature of the initiative. Accordingly, petitioners cannot show that, by reason of the federal injunction, Proposition 73 has been “invalidated.” (Taxpayers, supra, 51 Cal.3d at p. 771, fn. 13.) Hence, there is no reason to reevaluate our holding of Taxpayers, that Proposition 73 was enacted and that Proposition 68—a competing, alternative statutory scheme that was simultaneously passed by a lesser number of affirmative votes—is inoperative.¹⁰

C. Continued, viability of Taxpayers holding

Petitioners suggest, nevertheless, that the factual premise that underlies Taxpayers, supra, 51 Cal.3d 744—namely, that Propositions 73 and 68 were competing, alternative statutory schemes—has been undermined by the federal injunction. They assert that even if Proposition 73’s remaining provisions are all severable, the measure has been so diluted that it would no longer constitute a competing, alternative statutory scheme, as compared with Proposition 68, and hence article II, section 10, subdivision (b) of the state Constitution should be read to require the courts to merge the nonconflicting parts of the two measures. (See Yoshisato v. Superior Court (1992) 2 Cal.4th 978, 987-988 [9 Cal.Rptr.2d 102, 831 P.2d 327] [merging two noncompeting initiative measures].)

We reject petitioners’ assertion that the factual premise of Taxpayers has been undermined by events occurring after the June 1988 election. The rule articulated in Taxpayers, supra, 51 Cal.3d at page 765, looks to the nature of the measures as they were presented to the voters. We took the same approach in Yoshisato v. Superior Court, supra, 2 Cal.4th 978, 987-988; in that case we interpreted the Constitution as requiring merging of two measures that were “presented to the voters as complementary or supplementary (i.e., noncompeting) measures.” (2 Cal.4th at p. 988, italics added.) In neither case did we suggest that events subsequent to the election might be considered to alter the nature of the conflicting measures in a later challenge. Indeed, such an approach would be unworkable, and would produce potential uncertainty that could not have been intended by the drafters of article II, section 10, subdivision (b) of the Constitution. Accordingly, we reject the suggestion that the federal injunction has transformed Propositions 73 and 68, nunc pro tunc, from alternative, competing measures that cannot be merged, into complementary, supplementary measures that must be merged.

III. Conclusion

Petitioners’ application for a writ of mandate is denied. Accordingly, intervener’s demurrer is overruled as moot.

George, J., concurred.

1 Further statutory references are to this code.

2 Petitioners are Walter B. Gerken, Melvin B. Lane, John Larson, Cornell C. Maier, Rocco C. Siciliano, Jean R. Wente, Francis M. Wheat and California Common Cause.

3 The alternative writ directed respondents to: “(a) cease implementation of Proposition 73, and to enforce Proposition 68 in its entirety; or [¶] (b) show cause before this court why a peremptory writ of mandate should not issue directing you to cease implementation of Proposition 73, and to enforce Proposition 68 in its entirety; or [¶] (c) show cause before this court why a peremptory writ of mandate should not issue directing you to implement and enforce all but the public financing and expenditure limitation provisions (arts. 4 and 5 of secs. 1 and 2) of Proposition 68. . . .”

4 Respondents are the Fair Political Practices Commission and the Franchise Tax Board.

5 Amicus curiae briefs have been filed by: (i) Assemblyman Willie L. Brown, State Senator David Roberti, the California Teachers Association, the Laborers International Union of North America, and the California Conference of Machinists; (ii) State Senator Quentin L. Kopp and Assemblyman Ross Johnson; and (iii) the Institute of Governmental Advocates.

6 In making this latter assessment, the Ninth Circuit considered only federal, and not state, law. (Ibid.) Neither the parties in this case, nor the various amici curiae (including amici curiae State Senator Quentin Kopp and Assemblyman Ross Johnson, who sponsored Proposition 73), challenge the Ninth Circuit’s statutory analysis in this regard, nor does any party or amicus curiae request this court to adopt a “saving” or “reformed” construction of the statutes at issue in order to resolve petitioners’ claim.

7 “Although the initiative process differs from the legislative process in that it does not permit amendments and a collective weighing of the relation of the parts of the enactment, it is nonetheless subject to the severability doctrine. (See Santa Barbara [Sch. Dist. v. Superior Court (1975)] 13 Cal.3d 315 [118 Cal.Rptr. 637, 530 P.2d 605].)” (People’s Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 332 [226 Cal.Rptr. 640].)

8 Accordingly, we will overrule intervener’s demurrer as moot, and we need not address its separation of powers challenge to “revival” of Proposition 68.

9 The provision read: “Sec. 2. Section 82041.5 of the Government Code is amended to read: [¶] 82041.5. “Mass mailing” means two hundred or more identical or nearly identical substantially similar pieces of mail, but does not include a form letter or other mail which is sent in response to a an unsolicited request, letter or other inquiry.” (Ballot Pamp., Prop. 73, Primary Elec., supra, at p. 63, italics and strike-through type in original.)

10 The dissent simply ignores, and hence gives no effect to, the severability clause contained in Proposition 73. Indeed, under the approach embraced by the dissent, all of the provisions of Proposition 73 not subject to the federal injunction would be invalidated even if that initiative had been the sole campaign reform measure before the voters in 1988. Our cases require that we afford more respect to a legitimate severability clause. (See, e.g., Calfarm, supra, 48 Cal.3d at p. 821.)