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Kopp v. Fair Pol. Practices Com.11/30/1995
LUCAS, C.J.:
I. INTRODUCTION AND SUMMARY
In 1988 the voters enacted Proposition 73, which was designed to reform financing of statewide and local political campaigns. (See Gov. Code, §§ 82041.5, 85100-85400, 89001.) Five provisions of that measure are at issue in this litigation: Section 85301, subdivision (a) (hereafter section 85301(a)) limits to $1,000 per fiscal year, contributions by a "person" to a candidate or committees controlled by the candidate. Section 85302 limits to $2,500 per fiscal year, contributions by a "person" to a "political committee, broad based political committee, or political party." Section 85303, subdivision (a) (hereafter section 85303(a)) limits to $2,500 per fiscal year, contributions by a "political committee" to a "candidate or any committee controlled by that candidate." Subdivision (b) (hereafter section 85303(b)) of the same section limits to $5,000 per fiscal year, contributions by a "broad based political committee or political party" to a "candidate or any committee controlled by that candidate." Finally, section 85304 bans transfer of contributions between a candidate's own committees and between candidates.
In 1990, in a suit in which petitioners in the present litigation were allowed to intervene on behalf of the defendant (respondent herein Fair Political Practices Commission), the federal district court held the "fiscal year" measure of sections 85301-85303 unconstitutional, and enjoined enforcement of those sections and section 85304. ( Service Employees v. Fair Political Practices (E.D. Cal. 1990) 747 F. Supp. 580 (Service Employees I).) The Ninth Circuit Court of Appeals affirmed the judgment of the district court ( Service Employees v. Fair Political Practices (1992) 955 F.2d 1312 (Service Employees II)), and the high court denied certiorari review. (___ U.S. ___ [ 120 L. Ed. 2d 922].)
In this original proceeding (see Cal. Const., art VI, § 10; Cal. Rules of Court, rule 56(a)) brought by petitioners State Senator Quentin Kopp and Assemblyman Ross Johnson, cosponsors of Proposition 73, we issued an alternative writ of mandate to respondent Fair Political Practices Commission directing it to show cause why a peremptory writ of mandate should not issue ordering respondent to enforce sections 85301-85304. Respondent filed an answer taking a neutral position on the issue. We granted the motions of Common Cause to intervene on behalf of petitioners, and of the California Legislature and four legislators to intervene on behalf of respondent. In addition we accepted amicus curiae briefs from other interested entities and legislators.
The issue is one of state law: Assuming enforcement of the challenged sections as enacted would violate the federal Constitution, may, and if so, should, the statutes be judicially reformed in a manner that avoids the fiscal year measure?
As explained below, we reject claims by interveners on behalf of respondent that the doctrine of res judicata or considerations of comity bar consideration of the issue raised. Nor does the federal appeals court's judgment affirming the federal district court's injunction against enforcement of sections 85301-85304 render those sections incapable of reformation by this court in this litigation.
We also reject the view that a court lacks authority to rewrite a statute in order to preserve its constitutionality or that the separation of powers doctrine, which vests legislative power in the Legislature and judicial power in the courts (Cal. Const., art. IV, § 1; id., art. VI, § 1), invariably precludes such judicial rewriting. Under established decisions of this court and the United States Supreme Court, a reviewing court
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