TUOLUMNE JOBS & SMALL BUSINESS ALLIANCE v. S.C.

Real Party in Interest, Wal-Mart Stores, Inc., Opening Brief on the Merits

Cal.March 14, 2013

Case No.: S 207173 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA TUOLUMNE JOBS & SMALL BUSINESS ALLIANCE, sypaewe coURT Petitioner, Ys. MAR 4 4 2013 SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF TUOLUMNE, prank A, MoGuire Clerk | Respondent, Deputy WAL-MARTSTORES,INC., JAMES GRINNELL, AND THE CITY OF SONORA, Real Parties in Interest. After a Decision By the Court of Appeal, Fifth Appellate District Case No. F063849 Hon. JamesA. Boscoe, Superior Court Judge Superior Courtof the State of California, County of Tuolumne Case No. CV56309 = REAL PARTYIN INTEREST WAL-MARTSTORES,INC.’S OPENING BRIEF ON THE MERITS Megan Cesare-Eastman (SBN 2538 Daniel W. Fox (SBN 268757) K&L Gates LLP Four Embarcadero Center, Suite 1200 San Francisco, California 94111- Telephone: 415.882.8200 Facsimile: 415.882.8220 ed.sangster@klgates.com megan.cesare-eastman@klgates.com daniel.fox@klgates.com Edward P. Sangster (SBN 12104 45) Attorneys for Real Party in Interest al-Mart Stores, Inc. Case No.: S 207173 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA TUOLUMNE JOBS & SMALL BUSINESS ALLIANCE, Petitioner, vs. SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF TUOLUMNE, Respondent, WAL-MARTSTORES,INC., JAMES GRINNELL, AND THE CITY OF SONORA, Real Parties in Interest. After a Decision By the Court of Appeal, Fifth Appellate District Case No. F063849 Hon. James A. Boscoe, Superior Court Judge Superior Court of the State of California, County of Tuolumne Case No. CV56309 REAL PARTY IN INTEREST WAL-MART STORES,INC.’S OPENING BRIEF ON THE MERITS Edward P. Sangster (SBN aoe) Megan Cesare-Eastman (SBN 253845) Daniel W. Fox (SBN 268757) K&L Gates LLP Four Embarcadero Center, Suite 1200 San Francisco, California 94111 Telephone: 415.882.8200 Facsimile: 415.882.8220 ed.sangster@klgates.com megan.cesare-eastman@klgates.com daniel.fox@klgates.com Attorneys for Real Party in Interest al-Mart Stores, Inc. TABLE OF CONTENTS Page INTRODUCTION....0....cecccsseeceecseecseceseneeeacessensesseeseeeneeereseeesnerseneeeess 1 STATEMENTOF FACTS......cecceeecescsseeeenecesseeeaceseeeneeeneeeeneernreessaness 3 STATEMENTOF THE CASE Q...... ee eeeeeseceseceeseeeneeeeeeneeseeersaeeneneeesaes 5 QUESTIONS PRESENTED FOR REVIEW 0... eecceeeceeseeeeteeeeteeeees 6 STANDARD OF REVIEW....0....cccecccessesseecseeeeeeeeseeteesaneceaeensaeenensensues 6 BACKGROUND...eccceescesrceecenecesecnnecseeeseecseeeeeeaeseeesatenaereeseeseaees 7 A. Amendment of the Constitution, and Subsequent Legislative Enactments: Empowering the Electorate with the Right of Initiative...eee7 B. The Enactment of CEQA ........cceeceesscceteresseeeeteeeceneeerenes 11 C. Associated Home Builders........eccccccccseeessecenseeesneeessneees 13 D. The Legislative Compromise to Empower Local Governments to Evaluate the Environmental Impacts of Voter Initiatives... eeeeeseeceseeeeseeeteeeeeee 15 E. DOVUA i eeiiccesesencccceeeeeneneeceesessnsnaeeceeesessseeesesnssaeeaseesesaeeeaees 19 F, Friends ofSierra Madre .....ccccscccccsssssssssecesessseesseesessaees 21 G. Native American Sacred Site ......ccccscccssseeeseesseetsstenneees 23 HH. TUOLUMING oe ce ccc ceeeecceeesececessnnnceesnaceecsuaseesnenesecsuaeeeessnnees 24 LEGAL DISCUSSION......ee cc ccceecceeeececeeeteeeesecessaeeseeeaneseaeenaneeeerenaes 27 A. Procedural Requirements Enacted by Statute, Including CEQA, Do Not Apply to the Electorate when Exercising Its Initiative Power............eceeeeeeeeees 27 B. The Decision to Adopt a VoterInitiative is Exempt from CEQA Because It is Mandatory and Ministerial ..........cccccccccccssseecesnseceecnceesececsseeeeeeecesnesenseeeeees 29 C. The Reasoning of Tuolumne Violates Every Relevant Canon of Statutory Construction......0..0...8 32 1, Statutes Must Be Construed According To Their Plain and Ordinary Meaning.................00 33 2. Statutes Must Be Harmonized So That No Part of Either Becomes Meaningless or SUIPLUSAGE......eeeeecccessecesscceeseeceseecsseeeeeseseessesenses 35 (i) Tuolumne Repeats the Mistake Made in Hurst v. City ofBurlingame By Creating and Resolving a Conflict that Does Not EXiSt .......ceceecceseeteeceeecseeseeeteneseees 35 (ii) Tuolumne Makes the Abbreviated Report Pursuant to Elections Code Section 9212 and 9214 (c) Surplusage......37 3. Statutes Must Be Construed to Ascertain and Effectuate Legislative Intent ......0.0. eee eeeeeeeeeees 40 (1) The Inclusion of One Thing In A Statute Excludes Any Other......0...0.cceee 4] (ii) Words or Qualifying Provisions Cannot be Judicially Inserted Into a Statute 0.0... eessseeesessneeeesseneeeeeeseneressneees 42 (iii) Judicial Views Cannot be Substituted for Those of the Legislature...42 (iv) A Sensible Construction Must be Used to Avoid an Absurd Result............... 44 D. The Court of Appeal Erroneously Concluded That Adoption of an Initiative was the “Antithesis of DeMOCraCy”..... ec eeeeccceeseceeseseeeececereasesetsnecseaseseesaeeesseessnees 44 E. Requiring Local Governments to Perform a Protracted and “Meaningless” Environmental Review Would Unconstitutionally Impair the Electorate’s Reserved RightofInitiative ......... 46 CONCLUSIONo.ooeeeececeeeseeteceeeeseeeneceenesseeneeaeeseeeeeaeeaecieeneeereneeats 48 CERTIFICATE OF WORD COUNT........cecceceescesseeseeeeretettereaeeaees 49 i TABLE OF AUTHORITIES Page(s) CASES Amador Valley Union High School District v. State Board of Equalization (1978) 22 Cal.3d 208ecceccsssceesseecneeeseeesseeeneeeseeeseeeesieeseeseneeens 47 AssociatedHome Builders ofthe Greater East Bay, Inc. v. City ofLivermore (1976) 18 Cal.3d 582 wceccccccessccesseecestsecenseeseeecesssseceeeeesspassim Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962 oo... ceccccscssnscstseeseecsecensessneeeneeecseestesenseeesaes 7 Blotter v. Farrell (1954) 42 Cal.2d 804 oo... eiecsceseeeseeseeseceecenerseessseteeesereeseneeses 29 DeVita v. County ofNapa (1993) 9 Cal.4th 763.0... ccc ecscessecsneesneeesaneesnecseeessesestessaeeaeepassim Dyna-MedInc. v. Fair Employment & Housing Comm. (1978) 43 Cal.3d 1379 ociccccccessccssseesesenseceseessescarecsaressseceeeseaeess 32 Ex parte Zany (1912) 20 Cal.App. 360 oo... eececceeseenecsseesecteesaeecsecsaecneessneeaneess 29 Friends ofSierra Madre v. City ofSierra Madre (2001) 25 Cal.4th 165 occ ceeccecssncesenceeseeceseaeecssneeessereessaeenspassim Friends of Westwood, Inc. v. City ofLos Angeles (1987) 191 Cal.App.3d 259 oieeeeecsseceenecsseseseceeteeenaeernees 30, 34 Fuentes v. Workers’ Compensation Appeal Board (1976) 16 Cal.3d 1 oieccceesecsseessecesneseseeeseesserereesseessseeseneeesaes 35 Garson v. Juarique (1979) 99 Cal.App.3d 769 oo... eececsessceesseeeeeeseeceseeeteneceneerneeensaes 4] Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th 508 oo. eecceeeccceseesrecsneesseesereeseeeeneeeseseressaaes 33 Hurst v. City ofBurlingame (1929) 207 Cal. 134 oo iecesecesseeeseceeeereneeceneeneeeeaeesanereneeeaes 35, 36 In re Hoddinott (1996) 12 Cal4th 992 ooeeceeessseesrecesneceeeeeseceeeesseeesnetseeeesaes 42 ili Landrum v. Superior Court (1981) 30 Cal.3d 1 oieceeecsessccerecsceseesseecseesseeseeseeeseeeseesteetnees 44 Laurel Heights Improvement Assoc. v. Regents ofthe University ofCalifornia (1988) 47 Cal.3d 376 oo .ceccccccsscssseceteeeseceneeceaeeeeeseneecseeeesneesenteess 12 Legislature v. Eu (1991) 54 Cal.3d 492 ooo ccccccceceneceseeeseceteeseeesenensareenteeeeeees 32, 35 Martin v. Smith (1959) 176 Cal.App.2d 115cececcececesseeseseceereteaeesseeeeseeeeneeeess 29 Mejia v. Reed (2003) 31 Cal.4th 657 oo... ccececcessecssecencesseeceseceseeesneeeseesesseeens 33,35 Mervynne v. Acker (1961) 189 Cal.App.2d 558 oo ccccceeesseeseceteecseeesseersaeeseeessneeeegs 35 Moore v. Regents of University ofCalifornia (1990) 51 Cal.3d 120 oo. ceeceececeeseeeeeeneeeeeerseeseeeseeeseeeneeeeesseeneensns 7 Mountain Lion Foundation v. Fish & Game Comm. (1997) 16 Cal.4th 105oeeeeeeeceeeesseessesseeeseessseeseeeaes 29, 30, 34 Native American Sacred Site and Environmental Protection Association v. City ofSan Juan Capistrano (2004) 120 Cal.App.4th 961 oo.eeeesceeesesteeeseenersseneeeepassim Northwood Homes, Inc. v. Town ofMoraga (1989) 216 Cal.App.3d 1197 voi eeeecceeesneeseseereeecereeeeeeseeseeseaeeees 24 People v. Cruz (1996) 13 Cal.4th 764 oo.eccceseseceseeeseesseeeesnerserersatersaserssseesnaes 32 Quelimane Company, Inc. v. Steward Title Guaranty Company (1998) 19 Cal.4th 26 0... eeceeseeseceneeeneeseseeeeeeceseeseseeeessenneees 16 Smiley v. Citibank (1995) 11 Cal.4th 138 ooeeeeseeseeeeeneeeseeeeaeeseeeetsnesesseseaeeesas 6 Stein v. City ofSanta Monica (1980) 110 Cal.App.3d 458 occeeeeeesceeseeeeseesereeeesseceseevsessenaaes 22 Stop Youth Addiction v. Lucky Stores, Inc. (1988) 17 Cal.4th 553oeeeeecceseecenceeseeeseeeneeeseseeseseeerseaeeeaes 16 Tuolumne Jobs & Small Business Alliance v. Superior Court (2012) 210 Cal.App.4th 1006occeeeeeeeeereeeessetenspassim iv Walnut Creek Manor v. Fair Employment and Housing Comm. (1991) 54 Cal.3d 245 ooo ceecessnececneceecereceseseessersceseneetneeeesaee 32, 40 CONSTITUTIONS California Constitution, Article ID, § 8.0... ceecesseeeseereeeees 11, 28, 46 California Constitution, Article II, § 11...eeeeeeeeees 1, 11, 29, 46 STATUTES California Code of Civil Procedure § 1858 oo...eeeeeeeseeeeeeeneeeeeeees 4] California Code of Civil Procedure § 1859 ooo...ieee ceseceeseneeeeeeees 32 California Code of Regulations § 15002 wo...eeeteeeeerserenens 12 California Code of Regulations § 15060-15061...eeecreer 38 California Code of Regulations § 15063 200.0... ieee eeeeeeceeeeeetseeeeenes 38 California Code of Regulations § 15074(b)......... cess eeseeeeseeeeeseeeeees 38 California Code of Regulations § 15107 oo.eeeeeeseeeeeeseeeeseeeees 38 California Code of Regulations § 15369 oo...eeeeeessesesesenseeeeees 34 California Code of Regulations § 15378 oeeee eeceeeseseeneeeeeeneeeeees 22 Elections Code § 9111 oo...ee eeeeeceeeeeeeeececeneeeeeeeteeeersneesersseeneeeeons 18, 20 Elections Code § 9212 oo... ceeeeeesceeeeseeseeeeeeseeesneerssseveeseeeeeeseneeeespassim Elections Code § 9214 oo... eeeceeesececeeeseeeseesseeeeseecsseerseeesesessneeeeespassim Elections Code § 9215 .....ceeccccccccccessessensceeesneeeeressneeeceesseseeeeeereenengees 11 Elections Code § 9222 oo....ceccccccccsessesssesesneeaeneeeesecneetesseneeneeseesesssanenes 21 Public Resources Code § 21000-21177 (CEQA).... cee eeeeeeeeeepassim Public Resources Code section 21002.1(D) ...... ee eeeeeeeeeseeseeeees 12, 37 Public Resources Code § 2106400... ceceeeeecesseeseereesseeecneeeseseneneeesaes 16 Public Resources Code § 21080............cccccccceeeseseeeeseesennnneeesees 22, 29, 34 Public Resources Code § 21080.2..00......ccceeesecesseeseneeeneeeesseeeeesneeersnees 38 Public Resources Code § 21091(b) oo... eeceseseeesseserseeeeseesesrnreentnes 38 Public Resources Code § 21151.5(a)(1)(B) .... eee ee eee eseeteseeeneeennes 38 COURT RULES California Rules of Court 8.504(b)(3) ..... eee eseeseeseeeseeeceeereseeeearertaees 6 LEGISLATIVE HISTORY Assembly Bill 628 000... ccccecccsccessessceceeseeeeeeesecseeesesceaeersesnetsseeeseeersaees 19 Assembly Bill 2003 ..........eccecssccsssessesseesseeessaecseneeceseeesenaeesees 16, 17, 18 Assembly Bill 2003, Final History 00...ee eseeeeeseneeeereesenereeees 17, 18 Assembly Bill 2202 00.0... ceeeesesscceeseeeseecesserneceeeeeeeessaeessneennees 17, 18 Assembly Bill 2202, Final History .0.....eeeeestesesecseeeeeeeseessesseseennees 17 Assembly Bill 3651 oo... ceeeeescecsseeeesneecesneeeeseeessesersaeeeesenaeessaaeessnaeeres 16 Assembly Bill 3651, Fimal History...cee eeeseeeeseeeeeceessseeeeessnneees 16 Assembly Bill 4678 ..........ceccscessseseeccserceseeesneceneessaeeseeeenseeeeneersneeesaeees 19 Assem.Floor Analysis, 3d reading analysis of Assem. Bill No. D202 .eeeccccscccsscecenseceseevsceteeseeesseessaeecenecesaeeeederseerseeesaaeeceseeneeeees 17, 18 Ballot Pamp., Spec. Elec. (Oct. 10, 1911) text of Prop. 7, Senate Const. Amendment No. 22, p.1 eeeeeeeseeseeeeeeeseeeeeeees 8,9 Executive Session, Stats. 1911, ch. 33, § Liv.eeseeeeestereeereeeees 9, 29 Sen. Com. on Elections, Reapportionment and Constitutional Amendments, Analysis of Sen. Bill No. SCA 16 (2009-2010) Reg. SeSS .....eeecesessenecsseneeeesseeseeeeeeeseeeenssssesenseeeees 10 OTHER AUTHORITIES California Should Return to the Indirect Initiative, Stern, 44 Loyola L.A. L.Rev. 671 oo... cece eeeneeseeeseeeneeeeeaneceeneeeees 10 Democracy by Initiative: Shaping California’s Fourth Branch ofGovernment, (2d ed. 2008) .......ceseeseccsseceseeenecesneeersnereeessatessees 8 Growth Control by the Ballot Box: California’s Experience, Curtin & Jacobson, (1990) 24 Loy. L.A. L. Rev. 1073.0... 15 Practice Under the California Environmental Quality Act, Kostka & Zischke, (2d ed. March 2012) § 1.16.0. 12, 38 The Initiative and Referendum’s Use in Zoning, (1976) 64 Cal.L.Rev. 74 oo. .eiceccscccssceneceseeseeeeneseecneeesesseeseenssenatenees 36 Vi Real Party in Interest Wal-Mart Stores, Inc. (“Walmart”) hereby submits its Opening Brief on the Merits. INTRODUCTION This case arises from the exercise of the reserved constitutional power of initiative under article II, section 11 of the California Constitution. Since its inception more than 100 years ago,the right of initiative has includedthe right to propose laws for immediate adoption by local legislative bodies, and barring adoption, to have those proposed laws promptly considered by voters in an election. The opinion ofthe Court ofAppealin this matter, Tuolumne Jobs & Small Business Alliance v. Superior Court (2012) 210 Cal.App.4th 1006, review granted February 13, 2013, S207173 (“Tuolumne”), judicially stripped local voters of part of that fundamental right — the right to propose laws for immediate adoption that might affect the environment. The Court of Appeal reached this unprecedented and remarkable result by judicially transforming a local government’s decision to adoptaninitiative into a “discretionary” act that had never been subject to the requirements ofthe California Environmental Quality Act (Public Resources Code sections 21000-21177) (‘CEQA”). Because,as the Court ofAppeal recognized,it is not possible to comply with both CEQAandprovisions of the Elections Code governing voter initiatives, the Court of Appeal acknowledged that its holding would preclude cities from directly adopting voter initiatives that affect the environment. In doing so, the Court created a judicially legislated barrier to the electoral process that was never intended orsanctioned by the Legislature. The Tuolumne decision must be reversed because the plain and clear meaning of the statutes governing the initiative process in California must not be overridden by anything other than a Legsilative act. The Court of Appeal erred in numerous, material respects. First, this Court previously held in DeVita v. County of Napa (“DeVita’) (1993) 9 Cal.4th 763 that “procedural requirements” like CEQAare not applicable to the people when exercising theirinitiative power. Id. at p. 787. Second, CEQA only applies to “discretionary” projects, and the Court of Appeal departed from precedent holding that the decision of a local governmentto adoptan initiative without alteration, or submitit to a vote, is mandatory and ministerial, not discretionary. The Court of Appeal failed to follow Supreme Court and other appellate court precedent characterizing “discretionary”decisions as those empowering a local governmentto deny or shape a project to mitigate environmental harm. Not only is Tuolumne contrary to precedent, it is ungroundedin legislative history and intent, and untethered to well established principles of statutory construction. The Legislature has, since 1911, facilitated the people’s right of initiative by permitting local governments immediately to adopt initiatives without alteration. The Legislature has never manifested an intent to apply CEQA to the decisions oflocal governments whetherto adoptvoterinitiatives. On the contrary, it has repeatedly rejected bills to apply CEQA to local initiatives. In addition to its numerouserrors, the decision in Tuolumne is internally inconsistent. It is premised on the unsupportable proposition that the Legislature intended to require a time-consuming environmental review ofinitiatives that would be “meaningless” — meaningless because a local governmentcould neveralter an initiative, regardless of what its environmental study revealed. Furthermore, Tuolumne holds that initiatives are subject to CEQA,even thougha city could never comply with CEQA whenpresented with an initiative. Finally, even ifthe Tuolumne Court correctly divined and applied a legislative intention to apply CEQAto the localinitiative process, the decision must be reversed. The people reserved unto themselves the right of initiative, while delegating only limited powers over the initiative process to the Legislature. The Constitution circumscribesthe Legislature’s powersoverthe initiative process to enacting proceduresto facilitate the right of initiative. The Legislature may in no waylimit or restrict that right. Becausethe right ofinitiative has always includedthe right to have initiatives directly adopted by local legislative bodies, construing CEQA to foreclose the right of direct legislative adoption would impermissibly burden the right of initiative in violation of the California Constitution. For the reasons discussed below, this Court should reverse the decision ofthe Court ofAppeal, and hold that CEQA doesnot apply to a local government when enacting a voter-sponsoredinitiative pursuantto the Elections Code. STATEMENT OF FACTS Accordingto the First AmendedPetition, Sonora prepared a draft environmental impact report (“EIR”) for the expansion of an existing Walmart store (the “Store Expansion’), circulated it for public comment, and received comments. (Appellate Writ Petition, exh. 2, p. 10.) On June 23, 2010, the Sonora Planning Commission held a public hearing to consider the EIR. The Planning Commissionissueda report to the City Council recommendingthat the City Councilcertify the EIR and approve the Store Expansion. (/d. at para. 11.) Shortly thereafter, Mr. James Grinnell served a notice of intent to circulate a petition to qualify a voter initiative that would add an ordinance creating a “Specific Plan.” (Appellate Writ Petition, exh 2, para. 14.) If adopted, the Specific Plan would permit the Store Expansion, as well as other uses of the property.’ (/d. at exh. 4.) During a periodlasting less than a month,” more than 20% of the registered voters in the City of Sonora’ signed Mr. Grinnell’s petition. The City opted to proceed pursuant to Elections Code section 9214, subdivision (c), and it ordered preparation of a report concerning the Initiative. (Appellate Writ Petition, exh. 2, p. 4.) Rather than ordering a special election, the Sonora City Council adopted the Initiative as an ordinance (the “Ordinance”). (/d. at p. 13, para. 27.) ' By way of example, permitted uses other than an expanded Walmart store included “Business, professional and trade schools and colleges,” “Live/work use,” and “Medical, dental and orthopedic clinics or laboratories.” (Appellate Writ Petition, exh. 4, pp. 82-83) (table of permitted property uses.) * Accordingto facts alleged in the First AmendedPetition, Real Party in Interest James Grinnell served the City with a notice ofintentto circulate an initiative petition on June 28, 2010. (Writ Petition, exh.2, p. 10, para. 14.) The City issued a Title and Summary on July 12, after which collections of signatures could begin. ([bid.) The initiative petition was filed on or about August 9, 2010. (/bid.) > Appellate Writ Petition, exh. 3 at 40:6-9. STATEMENT OF THE CASE The Petitioner filed an action on January 10, 2011, in which it sought traditional and administrative mandamus to invalidate the Ordinance. (Appellate Writ Petition, p. 8, para. 14.) The Petitioner named the City of Sonora as Respondent, and both Walmart and Grinnell, the proponent of the initiative petition, as Real Parties in Interest. The City and Walmart demurredto the Petition. In response, the Petitionerfiled a First AmendedPetition on April 27, 2011, prior to a hearing on the Demurrers. (Appellate Writ Petition, p. 8, para. 14.) The Petitioner alleged four causes of action in its First Amended Petition, each of which challenged the Ordinance under a different legal theory. Petitioner’s First Cause of Action, which is the only oneat issue in this proceeding, alleged that the Ordinanceviolated CEQA because Sonora had notcertified an EIR prior to adopting the voter initiative as an ordinance. The City, Walmart and Mr. Grinnell all demurred to the First Amended Petition. On October 14, 2011, the trial court issued an Order sustaining the demurrer to the First Cause of Action without leave to amend. (Appellate Writ Petition, exh. 1.) Petitionerfiled the Appellate Writ Petition on December13, 2011. On January 31, 2012, the Court ofAppeal issued an alternative writ and order to show cause whytherelief prayed for should not be granted. Walmart and the City filed their Returns to the Alternative Writ and Oppositions to the Order to Show Cause on March 1, 2012. The Court ofAppealfiled its decision on October 30, 2012. In the published portion of its decision, the Court of Appeal held that the decision by a city to adopt a voter-sponsoredinitiative is discretionary. Therefore, the City could not adopt a voter-sponsoredinitiative without first complying with CEQA. Tuolumne, supra, 148 Cal.App.4th at pp. 1024-1025, 1032-1033; Court ofAppeal opinion (“Opinion”)at pp. 17, 28. A petition for rehearing wasnotfiled. Cal. Rules of Court, rule 8.504, subd. (b)(3). Grinnell and Walmart filed Petitions for Review on December7, 2012. The City filed its Petition for Review on December 10, 2012, in whichit joined in the petitions filed by Grinnell and Walmart. This Court issued an order granting the petitions for review on February 13, 2013. QUESTIONS PRESENTED FOR REVIEW 1. Must a city comply with CEQA before enacting a voter- sponsoredinitiative pursuant to Elections Code section 9214, subdivision (a)? 2. Is enactment of a voter-sponsored initiative “without alteration” pursuant to Elections Code section 9214 “ministerial,” and, therefore, exempt from CEQA? STANDARD OF REVIEW This Court independently reviews issues decided by appellate courts. This Court has noted, “[w]Je have no need to defer [to the appellate court], because we can ourselves conduct the same analysis. In fact, we have need not to defer, in orderto be free to further the uniform articulation and application ofthe law within ourjurisdiction.” Smiley v. Citibank (1995) 11 Cal.4th 138, 146. The standard ofappellate review ofan order sustaining a demurrer is well established. The reviewing court gives the complaint a_ reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. The judgment mustbe affirmed if any one of the several grounds of demurrer is well taken. However,it is error for a trial court to sustain a demurrer whentheplaintiffhas stated a cause of action underany possible legal theory. Andit is an abuseofdiscretion to sustain a demurrer without leave to amendif the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967, internal citations omitted; see also, Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125. BACKGROUND A. Amendment of the Constitution, and Subsequent Legislative Enactments: Empowering the Electorate with the Rightof Initiative The Legislative history shows that the Legsilature repeatedly considered — and rejected — attempts to apply CEQAtotheinitiative process. This included rejecting attempts to apply CEQAto thespecific context here — the direct adoption of voter initiatives by a local municipality. Instead of applying CEQA, the Legislature adopted a compromise that permitted an abbreviated environmental review ofvoter initiatives within the requisite time constraints. The constitutional amendment and related legislation implementing the electorate’s right ofinitiative, referendum andrecall arose from rampantcorruptionin state and local governmentduring the 19th and early 20th centuries. After several high-profile corruption and bribery trials in the early 1900s, California voters elected as governorthe progressive candidate Hiram Johnson, who had run on a campaign of reform. Center for Governmental Studies, Democracy by Initiative: Shaping California’s Fourth Branch ofGovernment (2d ed. 2008) pp. 3-4. (“Democracy by Initiative’). In 1911, California voters approved Governor Johnson’s package of reforms by amending the California constitution to empowerdirect democracy. (Democracy by Initiative, supra, at pp. 3-4.) This included the enactment ofarticle IV of the Constitution, which reserved to the electorate the right ofinitiative. Article IV, section 1 provided, in pertinent part, The legislative power of this state shall be vested in a senate and assembly which shall be designated ‘The legislature ofthe State ofCalifornia,’ but the people reserve to themselves the power to propose laws and amendments to the constitution, and to adopt or reject the same,at the polls independentofthe legislature wl The 1911 constitutional amendment defined the people’s first reserved right of legislation as the “initiative.” The electorate could propose statewide laws by submitting the required numberofsignatures, at which point “[t]he law proposed by such petition shall be either . enacted orrejected without change or amendmentbythelegislature....”° Lawsrejected by the Legislature, or upon whichthe Legislaturefailed to act, were required to be submitted to the voters for approvalor rejection at the next general election, or at the discretion of the governor, at a special election. * Ballot Pamp., Spec. Elec. (Oct. 10, 1911) text of Prop. 7, Senate Const. Amendment No.22, p.1, availableat: http://library.uchastings.edu/research/online-research/ballots.php 5 Ballot Pamp., supra, at p. 1. The 1911 constitutional amendmentfurther reservedtheinitiative powerto enact local lawsto the electors ofeach county,city, and town? “to be exercised under such procedure as may be provided by law.” While granting the legislature the powerto legislate “procedures,” the amendment explicitly prohibited the legislature or local governments from enacting procedures that would limit or restrict the right of initiative: “This sectionis self-executing, but legislation may be enacted to facilitate its operation, but in no waylimiting or restricting either the provisionsofthis section or the powers reserved.”* Thus,the legislative “procedures”authorized by the constitutional amendmentare procedures “to facilitate the exercise ofthat right.” Associated Home Builders of the Greater East Bay, Inc. v. City of Livermore (“Associated Home Builders”) (1976) 18 Cal.3d 582, 591, emphasis added. The Legislature promptly enacted procedures to implementthe constitutional amendmentrelating to localinitiatives. The Legislature facilitated the right of localinitiative by adopting the same, forced choice imposeduponthe legislature when presented with a statewide initiative. When a proponent presented a local governmentwith aninitiative, the city had only two options: (1) passthe initiative within ten days without alteration; or (2) call a special election “forthwith.” Stats. 1911, Ex. Sess., ch. 33, § 1, pp. 131-132. ° Byits terms, the constitutional amendmentdid notaffect or limit the powersofchartercities. 7 Ballot Pamp., supra, at p. 1. 8 Ballot Pamp., supra, at p. 1. The constitutional provisions relating to initiatives have been modified several times since their enactment in 1911. The most significant ofthese amendments occurred in 1966. Amongotherthings, the 1966 amendmentdeleted the Legislature’s option to adopt statewide initiatives as law.’ The amendmentalso deleted the clauses explicitly barring the Legislature from restricting the reserved power oflocal initiative. As this Court has recognized, “[t]he 1966 constitutional revision was intended solely to shorten and simplify the Constitution, deleting unnecessary provisions;it did not enact any substantive change ’in the power of the Legislature and the people.” Associated Home Builders, supra, 18 Cal.3d at p.595, fn. 12. Furthermore, this Court recognized that the deletion of language barring the Legislature from restricting the reserved poweroflocalinitiative was being done“solely on the ground that it was surplusage, and that the deletion would be made ‘without, in the end result, changing the meaning of the provisions.’ (Cal. Const. Revision Com. (1966) Proposed Revision ofthe Cal. Const., pp. 49-50.)” Associated Home Builders at p.595, fn. 12. ’ The provision permitting the Legislature to adopt statewideinitiatives wasrarely used, and the voters abolished the statewide procedure aspart ofthe 1966 amendments. Sen. Com. on Elections, Reapportionment and Constitutional Amendments, Analysis of Sen. Bill No. SCA 16 (2009- 2010 Reg. Sess.) July 7, 2009, available at http://www.leginfo.ca.gov/ pub/09-10/bill/sen/sb_0001-0050/sca_16 cfa_ 20090706 095802 sen comm.html. One author opinedthat the so-called indirect initiative was rarely used because, prior to 1967, the Legislature was a part-time legislature, meeting for six months in odd-numbered years. Indirect initiatives therefore required substantial lead times. Stern, California Should Return to the Indirect Initiative, 44 Loyola L.A. L.Rev. 671. 10 The people’s reservedright ofinitiative is now containedin article Il of the Constitution. Article II, section 8(a) defines the power of initiative: “Theinitiative is the powerofthe electors to proposestatutes and amendments to the Constitution and to adopt or reject them.” Section 1 1(a) empowersthe electors ofcities and counties to exercise the right of initiative: “Initiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide.” Asdiscussed below,the procedures adopted by the Legislature to facilitate the right oflocalinitiative are now contained in Elections Code sections 9214 and 9215.'° Elections Code sections 9214 and 9215 continue to impose the same, forced choice on local governments that has existed since 1911: they must promptly enact initiatives, without alteration, or they must submit the initiatives to votes of the people. B. The Enactment of CEQA In 1970, approximately sixty years after the creation of California’s direct democracy, the Legislature enacted CEQA. CEQA’s basic goal of protecting the environment has two broad purposes: (1) Avoiding, reducing, or preventing environmental damage whenpossible by requiring alternatives or mitigation measures (14 '° Elections Code section 9214 applies when at least 15% of the registered voters sign an initiative petition. It requires that the city adopt the initiative without alteration or present it for decision by voters at a special election. Elections Code section 9215 applies whenatleast 10%, but less than 15%, of the voters sign the petition. In that case, the city must adopt the initiative withoutalteration or placeit on the ballot at the next regularly scheduled municipal election, unless for some other reason a special election is required. Different minimum thresholds for signatures apply in cities with less than 1,000 voters. 11 California Code of Regulations section 15002, subdivision (a)(2)-(3).); and (2) Providing information to decision-makers and the public concerning the environmental effects of proposed and approved activities (14 California Code of Regulations section 15002, subdivision (a)(1).) Kostka & Zischke, Practice Under the California Environmental Quality Act (2d ed. March 2012) § 1.16. CEQAtherefore mandates that public agencies require feasible mitigation measures to minimize environmental damage. Public Resources Code section 21002.1, subdivision (b)states, “[e]ach public agencyshall mitigate or avoid the significant effects on the environment of projects that it carries out or approves wheneverit is feasible to do so.” CEQAalso requires preparation of an EIR, the purpose ofwhich “4s to inform the public andits responsible officials ofthe environmental consequencesoftheir decisions before they are made.” Pub. Res. Code § 21002.1, subd. (b). After preparing an EIR, CEQAthen requires the city to “find either that the project’s significant environmentaleffects identified in the EIR have been avoided or mitigated, or that unmitigated effects are outweighed by the project’s benefits.” Laurel Heights ImprovementAssoc. v. Regents ofthe University ofCalifornia (1988) 47 Cal.3d 376, 391. 12 C. Associated Home Builders This Court decided Associated Home Builders, supra, 18 Cal.3d 582, six years after the enactment of CEQA. In Associated Home Builders, a developer sued to enjoin enforcement of an ordinance enacted by the voters through aninitiative. The initiative ordinance prohibited the city of Livermore from issuing residential building permits until local educational, sewage disposal, and water supply facilities complied with specified standards. Jd. at p.588. Theplaintiff alleged that the initiative ordinance wasinvalid because the city failed to comply with statutes governing the adoption of zoning or land use restrictions. The city did not, for example, follow state land use laws requiring noticed hearings before the planning commission and legislative body prior to enactmentofthe ordinance. Jd. at pp. 590-91. Thetrial court invalidated the ordinance based on the failure to comply with state land use laws, and this Court reversed. This Court held that statutory notice and hearing provisions governing zoning and land use ordinances did not apply to an ordinance adopted through a voter initiative. Associated Home Builders, supra, 18 Cal.3d at p. 588. This Court found that prior precedent applying state zoning statutes to initiative law was wrongly decided,in part, because: (1) zoning statutes were notinconsistent with initiatives; and (2) legislation shall notrestrict or limit the constitutional right to the initiative. The Court held that initiatives and land use regulations were not conflicting because the Legislature never intended zoning lawsto apply to the enactmentofzoninginitiatives. AssociatedHome Builders, supra, 18 Cal.3d at p.594. This Court noted, “[t]he fundamental test as to whetherstatutes are in conflict with each otheris the legislative intent. If 13 it appears that the statutes were designedfor different purposes, they are not irreconcilable, and may stand together.” Jd. at p. 594,fn. 10, internal citations omitted. Next, this Court noted the provision of the original 1911 constitutional amendmentthat “legislation may be enacted to facilitate its operation, but in no way limiting orrestricting either the provisions of this section or thepowers herein reserved.” AssociatedHome Builders, supra, 18 Cal.3d at p. 595. '! The Court thereforeheldthat the notice and hearing requirements, if interpreted to bar local initiative land use ordinances, “would be of doubtful constitutionality ....” Ibid. It was immediately apparent and obviousto Justice Clark that the decision would permit local governments to “bypass” state laws governing council action by adopting local voter initiatives, rather than submitting them to a vote of the people. In his dissent, Justice Clark recognized that the decision may provide a loophole for developers to avoid the numerousproceduresestablished by the Legislature which in recent years have made real estate development so difficult. Seeking approval ofplanned unit developments, land developers with the aid of the building trade unions should have little difficulty in securing the requisite signatures for an initiative ordinance. Because of today’s holding that the initiative takes precedence over zoning laws, the legislative scheme of notice, hearings, agency '' As previously discussed, the Court recognized that the particular language had been deleted from the Constitution in the 1966 amendment, but the Court found that the deletion was solely because it was deemed surplusage, and was made without changing the meaning of the Constitution. AssociatedHome Builders, supra, 18 Cal.3d at p. 595,fn. 12. 14 consideration, reports, findings, and modifications can be bypassed, and the city council may immediately adopt[a development] or, if the council refuses, the voters may approve. Associated Home Builders, supra, 18 Cal.3d at p. 615 (diss. opn. Of Clark, J.). D. The Legislative Compromise to Empower Local Governments to Evaluate the Environmental Impacts of Voter Initiatives Contrary to Justice Clark’s prediction, it was voter groups opposed to developmentthat embraced and energetically employedtheinitiative process. Between 1971 to 1990, a total of 202 growth control measures were placed onlocal ballots in California. Curtin & Jacobson, Growth Control by the BallotBox: California’s Experience (1990) 24 Loy. L.A. L. Rev. 1073, 1074. In responseto the ability of slow-growth proponentsto pass slow- growthinitiatives without any formal review,the building industry made repeated legislative attempts throughout the 1980s to subject voter initiatives to environmental reviews. In a sudden role reversal, proponents of slow-growthinitiatives, including environmentalists and preservationists, fought to exemptinitiatives from CEQA review and maintain the holding ofAssociated Home Builders. Asdiscussed below,the Legislature rejected each attempt to apply CEQAto the initiative process. In 1984, fourteen years after enacting CEQA, the Legislature considereda bill that would have required: the proponent of a land use initiative to file a draft environmental impact report or negative 15 declaration,'” pursuant to CEQA, before a city could consider the initiative. Unless an initiative proponent filed the required environmentalstudies,“the petition shall not be examined”bytheclerk. Assem. Bill No. 3651 (1983-1984 Reg. Sess.) as introduced Feb. 17, 1984.'> The California assemblyrejectedthe bill. Assem.Bill No. 3651, 3d reading June 12, 1984, 2 Assem. Final Hist. (1983-1984 Reg. Sess.) p. 2225. Three years later, in 1987, the Legislature contemporaneously considered two competingbills addressing environmental review oflocal initiatives. One bill, AB 2003, addressed environmental review in the specific context presented by this case — a decision by local government to adopt an initiative — as well as initiatives submitted to a vote of the people. AB 2003 would haveprohibited a city from directly adopting a land useinitiative until the city filed a full environmental impact report '? A “negative declaration”is a written statementbriefly describing the reasonsthat a proposedproject will not have a significant effect on the environment and doesnot require the preparation of an environmental impact report. Pub. Res. Code § 21064. 13 This Court noted in Quelimane Company, Inc. v. Steward Title Guaranty Company (1998) 19 Cal.4th 26 that it is unnecessary to request judicial notice of published legislative history. Jd. at 46, fn. 9. Similarly, this Court has noted that it is unnecessary to request judicial notice of assembly bills. Stop Youth Addiction v. Lucky Stores, Inc. (1988) 17 Cal.4th 553, 571, fn. 9, overruled on other grounds ("Simple citations to such published materials would have sufficed."). Based on those admonitions, Walmart is not separately requesting judicial notice of legislative materials cited herein. If any of the cited legislative materials are not readily available to the Court, or for the Court’s convenience, Walmart will submit a formal request for judicial notice or provide the cited legislative materials. 16 or negative declaration pursuant to CEQA. Assem.Bill No. 2003 (1987- 1988 Reg. Sess.). On the same day that the Assembly read AB 2003 forthe first time, it also read the competing bill, AB 2202.'* Assem.Bill No. 2202 (1987-1988 Reg. Sess.). AB 2202 permitted, but did not require, cities and counties to perform a limited environmental review of local initiatives. When considering AB 2202, the Senate Rules Committee acknowledgedthat current law “[did] not provide for any review of a proposedinitiative by a city or county attorney,or by anycity or county agency.” Assem. Floor Analysis, 3d reading analysis ofAssem. Bill No. 2202 (1987-1988 Reg. Sess.) as amended May 14, 1987, p. 1. In other words, local governments lacked the authority to conduct any formal study before making the forced choice to adoptan initiative or submitit to a vote of the electorate. In its original draft, the abbreviated environmental study permitted by AB 2202 would have applied solely to land useinitiatives. Assem. Bill No. 2202 (1987-1988 Reg. Sess.) as introduced Mar. 6, 1987. Ultimately the bill was broadened to apply to all initiatives. The bill provided a city council or board of supervisors the opportunity to ' See Assem.Bill No. 2202,first reading, Mar. 9, 1987, 1 Assem.Final Hist. (1987-1988 Reg. Sess.) p. 1443; Assem. Bill No. 2003, first reading, Mar. 9, 1987, 1 Assem. Final Hist. (1987-1988 Reg. Sess.) p. 1325. 17 analyze the environmental effects of an initiative prior to considering whether to adopta land useinitiative.’ The Legislature enacted AB 2202, which became Elections Code sections 9111 and 9212.'° This Court has described the abbreviated environmental review asa “legislative compromise,” permitting public agencies “to inquire into the environmental impacts of a proposed initiative to the extent consistent with the time requirements of the initiative process.” DeVita, supra, 9 Cal.Ath at pp. 794-795. It “balance[d] the right of local initiative with the worthy goal of ensuring that elected officials and voters are informed about the possible consequencesofan initiative’s enactment.” Jd. at p. 795. The Legislature rejected AB 2003, the competing bill to require full CEQA review of initiatives prior to adoption by the local government. Assem. Bill No. 2003, failed passage Jan. 11, 1988, 1 Assem.Final Hist. (1987-1988 Reg. Sess.) p. 1325. '? See Assem. Floor Analysis, 3d reading analysis of Assem. Bill No. 2202 (1987-1988 Reg. Sess.) as amended May 14, 1987, p. 2 (“[t]his bill is also intended to provide the city council or board of supervisorsfiscal information on proposedinitiative. It will also provide information on the proposed initative’s effect on the city’s or county’s general plan, zoning, or other policies to carry out the city’s or county’s obligation under state law, prior to the initiative being placed on the ballot and while the city or county still has the option to enact the initiative by local legislation’). '© Elections Code section 9111 applies to county governments when considering voter initiatives, whereas section 9212 applies the identical provisions to city governments when consideringinitiatives. The same Assembly Bill enacted the predecessorsto both statutes. Assem. Bill No. 2202 (1987-1988 Reg.Sess.). 18 The following year, in 1989, the Legislature considered and ultimately enacted AB 4678. An early draft ofAB 4678 again attempted to require a full CEQAreviewofvoterinitiatives. Assem. Bill No. 4678 (1987-1988 Reg. Sess.) as introduced Mar. 1, 1988. “[AB 4678], as introduced on March 1, 1988 would have subjected all initiatives considered ‘projects’ under [CEQA]...to environmental review.” DeVita, supra, 9 Cal.4th at p. 795. Yet again, the Legislature rejected legislation to apply CEQA to initiatives governed by the Elections Code. It deleted provisions that would have required CEQA compliance from the bill. As enacted, AB 4678 merely clarified that a city could briefly wait to consider the abbreviated report, prepared pursuant to what is now Elections Code section 9212, before making the forced choice whether to adopt an initiative or submitit for a vote ofthe electorate. Assem. Bill No. 4678 (1987-1988 Reg. Sess.). The very following year, in 1989, the Legislature considered Assembly Bill No. 628 (“AB 628”). Like manybills before it, AB 628 would have required an “extensive environmental and economic analysis” for local land use initiatives. DeVita, supra, 9 Cal.4th at p. 794. The Legislature rejected this bill, as well. /d. at p. 795. E. DeVita In DeVita v. County ofNapa (“DeVita’’) (1993) 9 Cal.4th 763, the plaintiffs filed an action challenging a local voter initiative that was adopted by the county’s voters to preserve agricultural land. The voter initiative readopted portions of the general plan’s land use element and restated certain policies applicable to agricultural land classifications. The measure also added a provision that explicitly restricted changes in 19 agricultural land use without a vote of the people for a period of 30 years, except under certain specified conditions. Attrial, the plaintiffs contendedthat (1) general plans could not be amended by initiative and (2) the authority of future boards of supervisors to amendthe general plan could not be limited by mandatory voter approval requirements. Followinga trial, the trial court found in favor of the defendants, and the Court of Appeal affirmed. On appealto the Supreme Court, the plaintiffs contended, among other things, that the initiative was invalid becausetheinitiative had been adopted without required environmental review. This Court held that, although general plan amendments are subject to the requirements of CEQA,general plan amendments adopted through voter initiatives are exempt from CEQA. DeVita, supra, 9 Cal.4th at p. 794. This Court further held that Elections Codesection 9111,'’ which permits a county governmentto study andassessthe impacts ofa proposedinitiative, was the means by which a county government could assess the environmental impacts of a proposedinitiative “to the extent consistent with the time requirements ofthe initiative process.” Ibid. In rejecting attempts to impose CEQA ontheinitiative process, this Court noted that the Legislature had repeatedly rejected attempts to require environmental scrutiny ofland use initiatives (discussed abovein section D). This Court observed, '7 Elections Code section 9111 applies to county governments when considering voter initiatives, whereas section 9212 applies to city governments when considering initiatives. The provision providing identical authority for a city to prepare a report concerning an initiative is found in Elections Code section 9214. 20 While only limited inferences can be drawn from bills that the Legislature failed to enact, the defeat of attempts to impose morestringent environmental review requirements on land useinitiatives provides additional corroboration that the Legislature did not intend such requirements to obstruct the exercise ofthe right to amendgeneralplans by initiative. DeVita, supra, 9 Cal.4th at p. 795, internal citations omitted. F. ‘Friends ofSierra Madre In Friends ofSierra Madre v. City ofSierra Madre (“Friends of Sierra Madre”) (2001) 25 Cal.4th 165, a city council drafted a proposed ordinance that would havedelisted historical properties and placed the ordinance onthe ballot pursuant to the statutory authority provided by Elections Code section 9222. The city did not comply with CEQA before doing so. After the voters approvedthe ordinance,the petitioners sued to set aside and void the ordinance arguing, among otherthings, that the ordinance was subject to CEQA because the city council had generatedit, rather than the electorate. The city argued that CEQA did not apply because the ordinance had been adopted by a vote of the people. The trial court granted the petition for writ of mandate on procedural groundsrelating to the format of, and information in, the ballot. The Court ofAppeal affirmedthetrial court’s order granting the petition for writ of mandate, but on different grounds. The Court of Appealheld that the initiative was not exempt from CEQAbecausethe city used discretion in drafting and proposingtheinitiative. This Court affirmed. It began its analysis with the threshold requirement for the application of CEQA. CEQA requirements and proceduresare triggered by any proposedpublicorprivate project thatis 21 not exemptedby statute. Friends ofSierra Madre, supra, 25 Cal.4th at p. 184. The CEQA requirements apply to discretionary projects carried out or approved by public agencies, including enacting and amending zoning ordinances, issuance of conditional use permits, and approving tentative subdivision maps (Pub. Resources Code, § 21080), but ‘[mJinisterial projects proposed to be carried out or approved by public agencies’ and those the agencyrejects or disapproves are expressly exempted from CEQA.(Id., subd. (b)(1) & (5).) Id. at pp. 185-86. The question in Friends of Sierra Madre was whether an ordinance drafted and proposed by the city council, but approved by the voters, was a “project.” The city contended that section 15378, subdivision (b)(4) of the CEQA Guidelines'® exempted the ordinance from CEQA because it was adopted pursuant to a vote of the people. This Court held that the addition of the citation of Stein to Guidelines section 15378, subdivision (b)(3) indicated that the exemption would apply only in the Stein situation, i.e., when placing an initiative measure on the ballot was a ministerial act compelled by law. Friends ofSierra Madre, supra, 25 Cal.4th at p. 189. The Court then held that the ordinance wasdiscretionary because the city had been under no obligation to draft it and place it before the voters. Friends ofSierra Madre, supra, 25 Cal.4th at pp. 189-90. “In 'S Section 15378, subdivision (b)(4) provides, “[p]roject does not include: [{] . . . [{] (3) The submittal ofproposals to a vote ofthe people ofthestate or of a particular community.(Stein v. City ofSanta Monica, (1980) 110 Cal.App.3d 458, 168 Cal.Rptr. 39)[.]” 22 contrast to the constitutional and statutory obligation to place a properly qualified voter-sponsoredinitiative on the ballot, here the city council had discretion to do nothing, but opted instead to place the delisting ordinance on the ballot. None of the alternatives involved only a ministerial act.” /d. at p. 190, fn. 16. This Court distinguished between a voter-sponsoredinitiative, and an agency-sponsoredballot measure. In the latter circumstance, CEQA review is required. In the former, it is not. Friends ofSierra Madre, supra, 25 Cal.4th at p. 191. G. Native American Sacred Site In Native American Sacred Site and Environmental Protection Association v. City ofSan Juan Capistrano (“Native American Sacred Site”) (2004) 120 Cal.App.4th 961, the petitioner challenged a city’s adoption of a voter initiative without CEQA review. Real Party in Interest Pueblo Serra LLC submitted aninitiative to the city to amendthe city’s general plan and rezone twoparcels to permit the development and operation of a private Catholic high school. Jd. at p.964. After negotiating an implementation agreementwith Pueblo Serra to mitigate adverse impacts, the city adopted the initiative pursuant to Elections Code section 9214 along with the implementation agreement. Initially, the trial court granted the petition for writ of mandate because the Elections Code only permitted the city to adopt the initiative “without alteration.” The trial court held that adoption of the implementation agreementconstituted an impermissiblealteration ofthe initiative. Native American Sacred Site, supra, 120 Cal.App.4th at p. 964. After the trial court’s decision, however, the city adopted the originalinitiative without including the implementation agreement. /bid. 23 Thepetitioner filed a secondpetition for writ ofmandate, seeking again to set aside the voter initiative the city directly adopted. Thetrial court sustained the city’s demurrer without leave to amend. Native American Sacred Site, supra, 120 Cal.App.4th at p. 965. The Court ofAppeal affirmed, holding that CEQA doesnot apply whena city directly adopts a voter initiative. Native American Sacred Site, supra, 120 Cal.App.4th at p. 965. Specifically, the Court ofAppeal held, “[a] city’s duty to adopt a qualified voter-sponsoredinitiative, or place it on the ballot, is ministerial and mandatory.” Id. at p. 966. Indeed, “[w]hen the electorate undertakes to exercise the reserved legislative power, the city has no discretion andacts as the agent for the electorate.” Jd. at p. 969, citing Northwood Homes, Inc. v. Town of Moraga (1989) 216 Cal.App.3d 1197, 1206. Citing Associated Home Builders, the Court of Appeal found, “it is plain that voter-sponsored initiatives are not subject to the procedural requirements that might be imposed onstatutes or ordinances proposed and adopted by legislative body ... .” Native American SacredSite at p. 968. Finally, the Court of Appeal further supported its decision by acknowledging that the Legislature did not intend CEQAto apply to Elections Code section 9214. Id. at pp. 968-969. H. Tuolumne In this case, the petitioner filed a petition for writ of mandate alleging the city violated CEQA whendirectly adopting a voterinitiative withoutfirst certifying an environmental impact report. The factual and procedural background,discussed above, is undisputed. The trial court sustained Walmart’s demurrer without leave to amendasto petitioner’s cause of action alleging the City violated CEQA. 24 The Court ofAppeal specifically disagreed with Native American Sacred Site and reversed, holding that the decision by a city to adopt a voter-sponsoredinitiative is discretionary. Thecity, therefore, could not adopt a voter-sponsoredinitiative without first complying with CEQA. Tuolumne, supra, 210 Cal.App.4th at pp. 1024-1025, 1032-1033; (Opinion at pp. 16-17, 25-28). In framing the issue as an “issue of statutory construction,” the Court of Appeal purportedly attempted to “ascertain and effectuate legislative intent.” Tuolumne, supra, 210 Cal.App.4th at p. 1019; (Opinion at p. 9). The Court of Appeal, however, did not analyze the legislative intent of Elections Code section 9214, the statute at issue, beyond a single quote from DeVita. Instead, the Court of Appeal “start[ed] from the proposition that CEQAapplies to projects approved by public agencies unless some authority establishes an exemption or exception ....” Tuolumne, supra, 210 Cal.App.4th at p. 1021; (Opinion at p. 13). After finding that CEQA only exempted voter initiatives submitted to a vote ofthe electorate, the Court of Appeal considered two sources of authority for not applying CEQAto a city adopted voter initiative: “the constitutional power of initiative retained by the people under the 1911 constitutional amendment, and the ministerial-projects exemption... .” Tuolumneat p. 1022; (Opinionat p. 13). First, the Court of Appeal concluded that when a city council adopts an initiative pursuant to Elections Code section 9214,the voters’ constitutional powerofinitiative cannot support a CEQA exemptionfor the project. Tuolumne, supra, 210 Cal.App.4th at p. 1023; (Opinion at p. 15). Without referring to the language of the 1911 constitutional 25 amendment, or its subsequent legislative history, the Court of Appeal found that permitting city council membersto adopt laws proposed by a minority of the electorate would be the “antithesis of democracy.” Tuolumne at p. 1023; (Opinionat p. 15). The Court of Appeal concludedthat the city’s decision to adopt the initiative without alteration was a discretionary action. In holding that forced choice required by Elections Code section 9214 was discretionary, the Court of Appeal explicitly disagreed with Native AmericanSite. Contrary to Native AmericanSite, the Court ofAppeal in Tuolumne did not interpret Elections Code section 9214 to mandate a ministerial choice between two procedures; instead, the Court ofAppeal reasonedthat under Elections Codesection 9214, a city has a mandatory and ministerial duty to hold an election, “but it never has a mandatory duty to adopt the initiative.” Tuolumne, supra, 210 Cal.App.4th at p. 1027; (Opinionat p. 19-20). The Court ofAppeal, therefore, held that the decision to directly adopt an initiative was discretionary. Finally, the Court of Appeal recognized two of the problems inherent in its holding. First, the Court of Appeal recognized that Elections Code section 9214 already provides for an abbreviated environmental review. The Court ofAppeal reasoned, however,thatthis abbreviated environmental report provides the city with a “rough idea” ofenvironmental consequences,allowingthecity to then decide whether additional environmental review is necessary. Tuolumne, supra, 210 Cal.App.4th at p. 1030; (Opinionat p. 24). Second, the Court ofAppeal recognized that its holding would nullify Elections Code section 9214 (a) for land use initiatives because a city could not complete an EIR within the mandated time constraints. The Court ofAppeal acceptedthis 26 nullification because when “statutes point in different directions and must be reconciled with one another, [the results] are bound to be imperfect.” Tuolumne at p. 1031-1032; (Opinionat p. 26). LEGAL DISCUSSION A. Procedural Requirements Enacted by Statute, Including CEQA,Do Not Applyto the Electorate when Exercising Its Initiative Power In Associated Home Builders, supra, 18 Cal.3d at p. 591, the Supreme Court described the history, significance, and consistent Judicial interpretation of the constitutionally-based initiative power in California: The amendmentof the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements ofthe progressive movement of the early 1900’s. Drafted in light of the theory thatall power of governmentultimately resides in the people, the amendmentspeaksofthe initiative and referendum,not as aright granted the people, but as a powerreserved by them. Declaring it ‘the duty of the courts to jealously guard this right of the people’ ... , the courts have described the initiative and referendum asarticulating ‘one of the most preciousrights ofour democratic process ... .’ ‘[I]t has long been our judicial policy to apply a liberal construction to this power whereverit is challenged in orderthat the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserveit.’ Thus, this Court has held that “procedural” requirements enacted by statute (such as CEQA) cannot interfere with the valid exercise of initiative power, which is guaranteed by our state Constitution. DeVita, supra, 9 Cal.4th at p. 785. DeVita contains a long discussion regarding several statutory procedural requirements applicable to the amendment 27 ofa county general plan, none ofwhich was foundto applyto the people acting undertheinitiative power. The Supreme Court stated the general rule: These cases exemplify the rule that statutory procedural requirements imposed on the local legislative body generally neither apply to the electorate nor are taken as evidence that the initiative or referendum is barred. The rule is a corollary to the basic presumption in favor of the electorate’s powerofinitiative and referendum. When the Legislature enacts a statute pertaining to local government, it does so against the backgroundofthe electorate’s right of local initiative, and the proceduresit prescribesfor the local body are presumed to parallel, rather than prohibit, the initiative process, absentclear indications to the contrary. DeVita, supra, 9 Cal.4th at p. 786. The Supreme Court then went on to reject attempts to impose CEQA review requirements on general plan amendments enacted through voter initiatives. Jd. at pp. 793-795. “[T]he defeat ofattempts to impose morestringent environmental review requirements on land use initiatives provides additional corroboration that the Legislature did not intend such requirements to obstruct the exercise ofthe right to amend generalplansbyinitiative.” Jd. at p. 795. Instead, the Supreme Court held that the ability of a city council to order a report concerning a voter initiative, as was donein this case, “permits public agencies to conduct an abbreviated environmental review of general plan amendments andother land useinitiatives in a mannerthat does not interfere with the prompt placementof such initiatives on the ballot.” Ibid. The initiative power includes separate powers to propose and enact legislation. Cal. Const., art. II, § 8. This Court has repeatedly characterized the rightofinitiative as “one ofthe most preciousrights of 28 our democratic process.” AssociatedHome Builders, supra, 18 Cal.3dat p. 591, quoting Martin v. Smith (1959) 176 Cal.App.2d 115, 117. “Initiative and referendum powers may be exercised by the electors ofeach city or county under proceduresthat the Legislature shall provide.” Cal. Const., art. II, § 11, subd. (a). The duty ofa city council to enactan initiative ordinance without change,or submitit to the voters, has existed without interruption since the Legislature adopted legislation to implementthe constitutional amendmentin 1911.” B. The Decision to Adopt a Voter Initiative is Exempt from CEQABecause It is Mandatory and Ministerial. To achieve the objectives ofCEQA,the Legislature has mandated the preparation and consideration of an environmental impact report before any public agency approves a project that is not statutorily exempt. Friends ofSierra Madre, supra, 25 Cal.4th at p. 184. One such statutory exemptionis for “[m]inisterial projects proposedto be carried out or approved by public agencies.” Pub. Res. Code § 21080, subd. (b)(1). The forced choice imposed on local governments presented with voter-generatedinitiatives is ministerial because those governments lack the powerto deny or shapethe initiatives. CEQA does not define “ministerial,” but in Mountain Lion Foundation v. Fish & Game Comm. (“Mountain Lion ' Stats. 1911, Ex. Sess. 1911, ch. 33, § 1, pp. 131-132. A similar provision applicable to county initiative ordinances was adopted during the same year. Ex parte Zany (1912) 20 Cal.App. 360, 364-365, see also, Blotter v. Farrell (1954) 42 Cal.2d 804, 812 (discussing Elections Code section 1711, the statute applicable at the time Blotter was decided). The current version of this statute is Elections Code section 9214. 29 Foundation’’) (1997) 16 Cal.4th 105, this Court characterized the difference between ministerial and discretionary projects as follows: “The statutory distinction between discretionary and purely ministerial projects implicitly recognizes that unless a public agency can shape the project in a way that would respondto concernsraised in an EIR,orits functional equivalent, environmental review would be a meaningless exercise.” Jd. at p. 117. The Court of Appeal similarly focused on the ability to “shape the project” in Friends ofWestwood, Inc. v. City ofLos Angeles (“Friends of Westwood’) (1987) 191 Cal.App.3d 259, 272 (decision is ministerial if a city lacks the power to deny or condition a permit to mitigate environmental impact). “[T]he touchstone is whether the approval process involved allows the governmentto shape the project in any way which could respond to any of the concerns which might be identified in an environmental impact report.” Jd. at p. 267. Besidesaninability to “shape the project,” ministerial projects are characterized by an inability to say “no” to the project. Friends of Westwoodnotedthatthe inability to “deny” as characterizing ministerial projects: No matter what the EIR might reveal about the terrible environmental consequences of going ahead with a given project the government agency would lack the power(that is, the discretion) to stop or modify it in any relevant way. The agency could not lawfully deny the permit nor condition it in any way which would mitigate the environmental damagein any significant way. Friends of Westwood, supra, 191 Cal.App.3d at p. 272. Tuolumne departs from the principles of both Mountain Lion Foundation and Friends of Westwood. It is the ability to “deny” or “shape the project” that differentiates between ministerial and 30 discretionary decisions. Whenaninitiative petition is signed byat least 15% of the voters of a city, the city council must either adopt the initiative as an ordinance, without alteration, or immediately order a special election. Elections Code § 9214, emphasis added.” Thus,a city presented with a voter-sponsored initiative can neither “deny” nor “shape the project.” As this Court noted, without the ability to “shape the project” the environmental review required by the Court ofAppeal in Tuolumne would be a “meaningless exercise.” The Tuolumne Court held that “[n]o ministerial duty dictated the city’s decision to adopt the initiative instead of submitting it to the voters.” Tuolumne, supra, 148 Cal.App.4th at p. 1024; (Opinion at p. 17). In other words, Tuolumne holds that the City’s decision was discretionary merely because it chose between twoalternatives. “Here, the city council did decide that the project should be carried out, and in doing so usedits discretion and political judgmentin concludingthat the decision about whetherit should be carried out should notbe left to the voters.” Tuolumne at p. 1024; (Opinionat p. 17). The Elections Code explicitly prevents a city from denying or shaping a project proposed through aninitiative, so its decision is necessarily “ministerial.” The fact that a local governmentfaces a forced choice between one of two alternatives does not make that choice °° Before deciding whichto do,a city council can request preparation of a report concerning the impact of the initiative pursuant to Elections Code section 9212. The report must be received within 30 days following certification of the sufficiency of the initiative. Elections Code § 9212. After receiving the report, a city council must either adopt the ordinance without alteration or order a special election. Elections Code § 9214, subd.(c). 31 discretionary, because neither option permits the governmentto deny or modify the initiative. In reaching its conclusion the Tuolumne Court overlooks previous judicial interpretations of “ministerial” within the context of CEQA. C. The Reasoning of Tuolumne Violates Every Relevant Canonof Statutory Construction The fundamentaltask and “paramountconsideration”ofstatutory constructionis to ascertain legislative intent to effectuate the purpose of the law. Code Civ. Pro. § 1859; Legislature v. Eu (1991) 54 Cal.3d 492, 505 (“Eu”); People v. Cruz (1996) 13 Cal.4th 764, 774-775. This Court has held: Ourfirst task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining suchintent, a court mustlookfirst to the words of the statute themselves, giving to the language its usual, ordinary import. The words of the statute must be construed in context, keeping in mind the statutory purpose,andstatutes or statutory sectionsrelating to the same subject must be harmonized, both internally and with each other, to the extent possible. Where uncertainty exists consideration should be given to the consequencesthat will flow from a particularinterpretation. Both the legislative history of the statute and the wider historical circumstancesofits enactment may be considered in ascertaining the legislative intent. A statute should be construed whenever possible so as to preserve its constitutionality. Walnut Creek Manor v. Fair Employment and Housing Commission (1991) 54 Cal.3d 245, 268 (“Walnut CreekManor’); quoting Dyna-Med Inc. v. Fair Employment & Housing Com. (1978) 43 Cal.3d 1379, 1394, internal citations omitted. 32 1. Statutes Must Be Construed According To Their Plain and Ordinary Meaning To ascertain the Legislature’s intent, courts start with the words of the statute, given their plain, ordinary meaning. Ifthe statutory language is clear and unambiguous, the court need go no further. Only if the language is susceptible to more than one reasonable interpretation will the court look to maximsof statutory construction and extrinsic aids. Mejia v. Reed (2003) 31 Cal.4th 657, 663 (“Mejia”); Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th 508, 519. The plain meaning of Elections Code section 9214 is clear. The face of the statute provides for an environmental report within 30 days following certification of the initiative. The face of the statute plainly states that the city “shall” do one of the following three options: (1) directly adopt a voter initiative; (2) order a special election; or (3) order a report — which could include an abbreviated environmental report — and then choose either option one or two within the time constraints identified on the face of the statute. Elections Code § 9214, subd. (a)-(c). Choosing between the three options is mandatory. A fourth option for CEQA review doesnotexist. Additionally, the Elections Codeplainly states that the city must adoptaninitiative “without alteration.” The plain meaning of“without alteration” does not include altering a project to adopt mitigating measures, a requirement of CEQA. The plain meaning of Elections Code section 9214, therefore, provides for a specified environmental review within explicit time constraints. Additionally, on its face, section 9214 prohibits the City 33 from acting outside the scopeofthe three specified options and prohibits the City from applying any mitigating measures. The plain meaning of “ministerial” is also clear. CEQA exempts ministerial projects from environmental review. As_ previously discussed,this court has already characterized “discretionary” decisions — the converse of“ministerial” ones — as those which would permit an agency to “shape” the project. Mountain Lion Foundation, supra, 16 Cal.4th 105, 117. Another court has characterized a “ministerial” decision as the inability to deny a project or condition approval in any way which would mitigate environmental damage. Friends of Westwood, supra, 191 Cal.App.3d 259, 272. In light of such precedent, the Court ofAppeal had no needtoresort to a novelinterpretation ofthe term. But it did, relying upon a phrase contained within the CEQA Guidelines that provides an exemption for such “ministerial” decisions. Pub. Res. Code § 21080(b)(1). The CEQA Guidelines define “ministerial” as something that describes a governmental decision involving little or no personal judgmentby the public official as to the wisdom or mannerof carrying out the project. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. A ministerial decision involvesonlytheuseoffixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or howthe project should be carried out. Cal. Code Regs., tit. 14, § 15369. The Court ofAppeal in Tuolumneheld that the City’s decision to adopt the Initiative was discretionary because it was under no obligation to adopt it. It found that the City had 34 exercised its subjective judgment in deciding to carry out the Store Expansion, but that decision was wrong. Once presented with the Initiative, the City had no powerto deny the Store Expansion, nor could it “shape”it. 2. Statutes Must Be Harmonized So That No Part of Either Becomes Meaningless or Surplusage Statutes should be construed, wheneverpossible, so that all may be harmonized and have effect with reference to the whole system of law, so that no part of either becomes “surplusage.” DeVita, supra, 9 Cal.4th at p. 778; Mejia, supra, 31 Cal.4th at p. 663. Statutory interpretations that would require one or another to be ignored must be avoided. Courts should assumethat the Legislature is awareofexisting, related laws and intends to maintain a consistent body of rules. Fuentes v. Workers’ Compensation Appeal Board (1976) 16 Cal.3d 1, 7. With regard to the peoples’ initiative power, “[i]f doubts can reasonably be resolvedin favorofthe use of [the initiative] power, courts will preserve it.” Mervynnev. Acker (1961) 189 Cal.App.2d 558, 563-64; Eu, supra, 54 Cal.3d at p. 501. (i) Tuolumne Repeats the Mistake Made in Hurst v. City of Burlingame By Creating and Resolving a Conflict that Does Not Exist Since this Court’s decision in Associated Home Builders, supra, 18 Cal.3d 582, courts have consistently applied the foregoing principles to avoid conflicts between the right ofinitiative andstatutory procedures regulating governmentalaction outside ofthe initiative process. Prior to AssociatedHomeBuilders, the Supreme Court had held in Hurst v. City ofBurlingame (1929) 207 Cal. 134 that statutes requiring a notice and 35 hearing to enact municipal zoning and land use ordinances applied to initiatives. Consequently, the Supreme Court held in Hurst that “[t]he initiative law and the zoning law are hopelessly inconsistent and in conflict as to the mannerof the preparation and adoption of a zoning ordinance.” Jd. at 141. This Court overruled Hurst in AssociatedHome Builders. With regard to the purported conflict, this Court held, “[flirst, Hurst, erroneously contriving a conflict between state zoning statutes and the initiative law, set out to resolve that presumed conflict. No conflict occurs, however; the Legislature never intended the notice and hearing requirements of the zoning law to apply to the enactment of zoning initiatives. See Comment, The Initiative and Referendum’s Use in Zoning (1976) 64 Cal.L.Rev. 74, 104-105; Associated Home Builders, supra, 18 Cal. 3d at p. 594, footnote omitted. Similarly, until Tuolumne, every case considering whether CEQA and the Elections Code conflicted has found that CEQA doesnot apply to voter-generated initiatives. See, e.g., Native American Sacred Site, supra, 120 Cal.App.4th 961; DeVita, supra, 9 Cal.4th 763; Sierra Madre, supra, 25 Cal.4th 165. The Tuolumne court found the CEQAand the Elections Code to be inherently incompatible. It frankly acknowledged that in a typical situation, its holding would makeit “impossible to comply with CEQA before the time for making a decision expired, since an EIR cannot be prepared, made available for public comment, and certified” within the time constraints applicable to initiatives. Tuolumne, supra, 210 Cal.App.4th at p.1031; (Opinion at p. 25-26). The Court further acknowledgedthatits holding would effectively nullify a city’s ability to 36 directly adopt anyinitiative that might havea significant impact on the environment. Tuolumne at p. 1031; (Opinionat p. 26). Evenif a city defied the time constraints ofElections Code section 9214 and prepared an EIR, it would still be impossible for a city to comply with the mitigation requirements of CEQA becausethe city could not alter an initiative. Pub. Res. Code § 21002.1, subd. (b); Elections Code § 9214. The conflict contrived by the Court in Tuolumne was unnecessary. The Elections Codesets forth procedures governing initiatives, including procedures for environmental review that are consistent with the people’s right to prompt consideration oftheir initiatives. CEQA does not apply to initiatives. Gi) Tuolumne Makes the Abbreviated Report Pursuant to Elections Code Section 9212 and 9214 (c) Surplusage After unnecessarily finding a statutory conflict, the Tuolumne decision violated a well-established canonofstatutory construction. The reports authorized by Elections Code Section 9212 and 9214, subdivision (c) permit public agencies “to inquire into the environmental impacts of a proposedinitiative to the extent consistent with the time requirements ofthe initiative process.” DeVita v. County ofNapa, supra, 9 Cal.4th at pp. 794-795. If CEQA applies, however, then the optional report contemplated by the Elections Code would always be subsumed within the mandatory preliminary review andinitial study required by CEQA. CEQAwould always require an evaluation as to whethera project might significantly impact the environment before a city could adopt an initiative. But as discussed below, the evaluation and determination 37 required by CEQAcould not be performed within the 30-day window for study permitted by the Elections Code. CEQA requires a public agencyfirst to conduct a “preliminary review” within 30 days following an application — which in this case would be a voterinitiative — to determine whetherthe proposed actionis a “project,” and if so, whetherit is exempt from CEQA. Guidelines, 14 Cal. Code Regs. sections 15060-15061. If an agency determines that a proposed activity would be a “project” and not exempt from CEQA,then the public agency has another 30 daysto prepare an “initial study” to determine whether the project may have a significant effect on the environment. Guidelines, 14 Cal. Code Regs., section 15063. “Many agencies routinely exceed the time limits for preparing an initial study and adopting a negative declaration, but there are no statutory sanctions for such violations.” Kostka & Zischke, Practice Under the California Environmental Quality Act (2d ed. March 2012) § 6.9,citations omitted. If a local government determinesthat an initiative constitutes a project, but would not adversely affect the environment, then the local government would be compelled to follow another mandatory process, including public notice and comment, before adopting a negative declaration. Guidelines, 14 Cal. Code Regs. section 15074, subd. (b). The local government would be required to provide a minimumof20 to 30 days time for public comment before adopting a negative declaration Pub. Res. Code § 21091, subd. (b). The adoption of a negative declaration could take up to 180 days (Public Resources Code section 21151.5, subdivision (a)(1)(B); Guidelines, 14 California Code of Regulations section 15107) and would require a city to consult withall responsible agencies andtrustee agencies. Pub. Res. Code § 21080.2. 38 The following excerpt further exposes the violation of the canon of construction by the Tuolumne Court: “[w]e see nothing in Elections Code section 9214to indicate that the subdivision (c) report is intended to operate to the exclusion of any other form ofenvironmental review . ..” Tuolumne, supra, 210 Cal.App.4th at p. 1030; (Opinion at p. 24). That observation turns an established canon of construction onits head. If CEQA applies, an optional report pursuant to section 9214, subdivision (c) would be surplusage because a more thorough (and time- consuming) analysis would be required under CEQAjust to determine whetheran initiative might impact the environment. The Court of Appeal surmised that a report pursuant to section 9214, subdivision (c) might be used to “show the council that it should not adopt the initiative because of possible environmental or nonenvironmental consequences. It might showthat the initiative should not be adopted absent more extensive environmental(or other) review.” Tuolumne, supra, 210 Cal.App.4th at p. 1030; (Opinion at p. 24). The Court’s reasoning cannotbe correct for at least two reasons. First, it would convert the optional report under section 9214, subdivision (c) into a mandatory prerequisite to council adoption of an initiative. Second, while holding that CEQAapplies, it would create a process for conducting environmental review that did not meet the requirements of CEQA. Either CEQA applies, or it does not. If CEQA applies, then a local government mustfully comply with all of its provisions. Ifa local government must comply with CEQA,then the report contemplated by Elections Code sections 9212 and 9214, subdivision (c) would be surplusage. 39 In summary, the Court of Appeal in Tuolumne erred by first, finding an irreconcilable conflict where none needed to be found, and second, by rendering provisions of the Elections Code surplusage. 3. Statutes Must Be Construed to Ascertain and Effectuate Legislative Intent If uncertainty exists when construing statutes based upon their plain language, the court should then considerthe legislative history, the widerhistorical circumstancesoftheir enactment, and the consequences flowing from particular interpretation. Walnut CreekManor, supra, 54 Cal.3d at p. 268. Ifthe Court determines that CEQA and Elections Code section 9214 cannot reasonably be reconciled based upon their plain language, an examination ofthe legislative history and purpose ofthe two statutes supports Native American Sacred Site’s conclusion that CEQAdoesnot apply to Elections Code section 9214. To begin, there is no evidence that the Legislature ever intended CEQAto apply to anypart ofthe initiative process. On the contrary, as ' discussed above, the legislative history reveals that the Legislature rejected attempts to impose CEQA requirementson localinitiativesat the same time it was empowering local governments to prepare abbreviated reports pursuant to Elections Code section 9212. By inserting CEQA requirements into Elections Code section 9214, the Court ofAppeal rewrote the express provisionsofthe statute in a manner whichthe Legislature had repeatedly declined to do. Making precisely the same argument that this Court soundly rejected in DeVita, the decision of the Court of Appeal “would have us redrawthis legislative compromiseby concluding that environmental review is mandatory”for 40 all directly-adopted land useinitiatives. DeVita, supra, 9 Cal.4th at p. 795, emphasis added. (i) The Inclusion of One Thing In A Statute Excludes Any Other “In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare whatis in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and wherethere are several provisionsorparticulars, such a construction is, if possible, to be adopted as will give effect to all.” Code Civ. Pro. § 1858. The enumeration ofparticulars in a statute implies the intentional exclusion of any omitted item. Garson v. Juarique (1979) 99 Cal.App.3d 769, 774. In Elections Code section 9214, subdivision (c), the Legislature empowereda city to postponeits decision whetherto adopt an ordinance, or submitit to voters, for 30 days in order to obtain a report pursuant to section 9212. The section permits a city council “to conduct an abbreviated environmental review of... land use initiatives in a manner that does not interfere with the prompt placementofsuchinitiatives on the ballot.” DeVita, supra, 9 Cal.4th at p. 795. The Elections Code _ | expressly mentions a particular means of providing an environmental review, creating a strong inference that the Legislature intended the enumerated method to be exclusive. Indeed, CEQAexisted at the time the Legislature enacted Elections Code sections 9212 and 9214 subdivision (c), but the Legislature failed to apply it to either statute. 4] (ii) Words or Qualifying Provisions Cannot be Judicially Inserted Into a Statute In construing a statute, courts may notinsert qualifying provisions or rewrite the statute to conform to or accomplish a purpose or assumed intention that does not appear onthe statute’s face, or from its language or legislative history. In re Hoddinott (1996) 12 Cal.4th 992, 1002. The Elections Code permits a city council to choose between directly adopting an ordinance, ordering a special election, or ordering a report pursuant to Elections Code section 9212. Elections Code § 9214. Tuolumneinserts qualifying language into the Elections Code — namely, the direct adoption alternative only applies to initiatives that will not have a significant environmental impact. The Legislature explicitly provided a means for a limited environmental reviewthat did not unduly burdentheinitiative power—a meansthat does not include CEQA. This Court should follow its own direction and “decline to engage in such legislation by judicial fiat.” DeVita, supra, 9 Cal.4th at p. 795. (iii) Judicial Views Cannot be Substituted for Those of the Legislature In DeVita this Court observed that the Legislature had considered and rejected several proposed bills that would have applied CEQA review to voter-sponsoredinitiatives, and held that the Legislature did not intend for CEQA to obstruct the exercise of the initiative power. DeVita, supra, 9 Cal.4th at pp. 794-795. The Tuolumne decision ignores this Court’s observations in DeVita, and improperly limits the holding of DeVita and its predecessors to initiatives adopted by popular vote. Tuolumne, supra, 210 Cal.App.4th at p. 1019; (Opinion at p. 9). 42 Tellingly, Tuolumne contains no discussion ofthe legislative history or historical context surrounding the right of initiative, the poweroflocal governments to adopt initiatives, or Elections Code sections 9214 and 9212. The Court of Appeal, instead, made a policy decision that the purpose of CEQA should trump the more than 100-year-old powerof local governmentsto adoptvoterinitiatives — a decision unsupported by the languageofthestatutes, the legislative history, or historical context. The Tuolumnecourt considers the ability of a city council to directly adopta voterinitiative an “anomalous consequence”becauseit allows “a small fraction of a local electorate, combined with a majority ofa city council” to adopt legislation. Tuolumne, supra, 210 Cal.App.4th at pp.1031-32; (Opinionat p. 26).”! But that consequenceis precisely what the people envisioned when they reserved the right of initiative unto themselves by amendingthe Constitution in 1911. It is also precisely what the Legislature envisioned when it gave a city council the unqualified power to adopt voterinitiatives more than 100 years ago. *! The Court of Appeal in Tuolumne characterized the actions ofthe voters and the City Council, here, as “nullify[ing] state law under conditions in whichthe local electorate as a whole has not been given a voice.” Tuolumne, supra, 210 Cal.App.4th at p.1031-32; (Opinion at p. 26). Obviously, however, even a majority of voters exercising their right ofinitiative would never have the powerto “nullify”state law. The question is not whether the local electorate can nullify state law, but, rather, whether CEQAapplies. 43 (iv) A Sensible Construction Must be Used to Avoid an Absurd Result The Tuolumne Court mandates that cities apply CEQA to initiatives they directly adopt, but admits it is typically impossible for any city to apply CEQAtoaninitiative. Indeed,it is always impossible. Regardless of time constraints, a city could never comply with CEQA’s mitigation mandates because a city cannot alter an initiative. Additionally, Tuolumne largely renders the Elections Code provisions providing for the preparation of an abbreviated study of environmental impacts largely surplusage, because such review would never be sufficient to comply with CEQA. Conducting the expensive and time-consuming environmental review required by CEQA,whena local governmentlacks any powerto deny or shape a project, would be a “meaningless exercise” and an anomalous consequence. “The intent to create such an illogical and confusing scheme cannotbeattributed to the Legislature. In fact, it is a duty of the courts to construe statutes so as to avoid such an absurd result, if possible ... .”- Landrum v. Superior Court (1981) 30 Cal.3d 1, 9. This Court should reverse the absurd result dictated by the Court of Appeal’s opinion. D. The Court of Appeal Erroneously Concluded That Adoption of an Initiative was the “Antithesis of Democracy” The Court of Appeal explained its unprecedented view that empoweringlegislative adoption ofinitiatives without elections wasanti- democratic as follows: The 15 percent minority’s power is merely to demand an opportunity for the exercise of sovereignty by the votersat 44 an election. To be sure, this is a vitally important power without which the voters’ will often would not ultimately be expressed. It does not mean, however, that any constitutional principle allows 15 percent ofa city’s voters plus a majority of the city council to defeat state law. Far from carrying out the objectives ofthe 1911 constitutional amendment, that result would undermine those objectives: The amendment aimsto allow a majority of voters to step in when they find that their elected representatives have failed them. It was not designedto allow a small minority of voters representing only themselves to obtain, via petition, a policymaking power exceeding that of the majority’s elected representatives. To hold otherwise would authorize rule by a few — the antithesis of democracy. Tuolumne, supra, 210 Cal.App.4th at p. 1023; (Opinion at p. 15). The Court of Appeals’ curious derision of the right to have initiatives immediately adopted without a vote cannotbe reconciled with the 1911 constitutional amendment. As previously discussed, the 1911 constitutional amendmentexplicitly empoweredthe Legislature directly to adopt voterinitiatives withouta vote ofthe people, and the Legislature has always empowered local governments to adopt voter initiatives without holding elections. Nothing about the 1911 constitutional amendmentor the 100-year-old law is the “antithesis of democracy.” Nor can the Tuolumne Court’s characterization be squared with this Court’s characterization of the 1911 amendment, which empowered direct adoption ofinitiatives, as “one ofthe outstanding achievements of the progressive movementofthe early 1900’s.” See, Associated Home Builders, supra, 18 Cal.3d at p. 591. 45 E. Requiring Local Governments to Perform a Protracted and “Meaningless” Environmental Review Would Unconstitutionally Impair the Electorate’s Reserved Rightof Initiative If the Court in Tuolumne was correct in holding that the Legislature intended to apply CEQAto voter generatedinitiatives, then the Legislature’s application of CEQA violated the California Constitution. The Legislature can enact procedures to facilitate the people’s exercise ofthe right of initiative. Associated Home Builders, supra, 18 Cal.3d at p. 595. It lacks the powerto restrict or impair that right. This Court has recognized that the Legislature cannot use its power to legislate “procedures” to “effectively bar’ the local initiatives. Ibid. (“legislation which permits council action but effectively bars initiative action may run afoul of the 1911 amendment”). This Court’s observation in Associated Home Builders actually understated the limitation on the Legislature’s power. The people circumscribed their delegation of legislative power over the right of initiative. The only powerthat the people delegated to the Legislature wasthe powerto “facilitate” the right of initiative. Thus, in Friends of Sierra Madre this Court observed, without deciding the issue, that “imposing CEQA requirements on such [voter-generated] initiatives might well be an impermissible burden on the electors’ constitutional powerto legislate by initiative. (Cal. Const., art. IT, §§ 8, 11.)” Friends of Sierra Madre, supra, 25 Cal.4th at p. 189. Similarly, this Court observedthat, “the notice and hearing provisionsofthe state zoning law, if interpreted to barinitiative land use ordinances, would be of doubtful 46 constitutionality.” Associated Home Builders, supra, 18 Cal.3d at p. 595. Theright ofinitiative includesthe right to propose laws, as well as the right to enact them. A legislative procedure that permits local governments to adopt proposed initiatives facilitates the people’s exercise of their reserved right ofinitiative. Applying CEQA andall time requirements and procedures would impede, not facilitate the initiative power. This Court has characterized the purpose of the initiative poweras a “legislative battering ram”to allow citizensto “tear through the exasperating tangle ofthe traditional legislative procedure andstrike directly towards the desired end.” Amador Valley Union High School District v. State Board ofEqualization (1978) 22 Cal.3d 208, 228. To affirm Tuolumne would be to disarm the people of their battering ram. Therefore, even if Tuolumne correctly held that the Legislature intended to prevent a local government from adopting a proposed initiative withoutfirst complying with CEQA,this Court should reverse because the people never delegated the powerto adopt suchlegislation to the Legislature. 47 CONCLUSION For the reasons discussed above, this Court should reverse Tuolumne and hold that CEQA does not apply to local governments when adopting voter-generated initiatives. Respectfully submitted, K&L GATESLLP Dated: March 14,2013 By: ooklh Ap Ww ster (Sard P. Sangs BN 12104 g Megan Cesare-Eastman (SBN 258845) Daniel W. Fox (SBN 268757) Attorneys for Real Party in Interest Wal-Mart Stores, Inc. 48 CERTIFICATE OF WORD COUNT Thetext of this brief consists of 12,511 words as counted by the Microsoft Word version 2007 word processing program usedto generate the brief. Respectfully submitted, K&L GATES LLP Dated: March 14, 2013 By: é Edward P. Sangsster SBRaes45) Megan Césare-Eastman (SB ) Daniel W. Fox (SBN sees) Attorneys for Real Party in Interest Wal-Mart Stores, Inc. 49 PROOF OF SERVICE STATE OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO I am employedin the county of San Francisco, State of California. I am overthe age of 18 and nota party to the within action; my business address is K&L Gates, Four Embarcadero Center, Suite 1200, San Francisco, CA 94111. On March 14, 2013, I served the foregoing document(s): REAL PARTYIN INTEREST WAL-MART STORES, INC.’S OPENING BRIEF ON THE MERITS together with an unsigned copyofthis declaration, on all interested parties in this action addressed and sent as follows: SEE ATTACHED LIST [XX] BY MAIL (By Following Office Business Practice): By placing a true copy thereof enclosed in a sealed envelope(s). I am readily familiar with this firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I placed such envelope(s) for collection and mailing on that date following ordinary business practice. [ ] BY ELECTRONIC MAIL:Iam personally and readily familiar with the business practice of the firm for the preparation and processing of documents in portable document format (PDF) fore- mailing. I prepared said document(s) in PDF and then caused such documents to be served by electronic mail to the above addressees. [ ] BY FEDERAL EXPRESS:I deposited such envelope in a box or other facility regularly maintained by Federal Express, an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive documents in an envelope designated by the said express service carrier, addressed as above, with delivery fees paid or providedfor, to be transmitted by Federal Express. I declare under penalty of perjury under the lawsofthe State of California that the aboveis true and correct. Executed on March 14, 2013, at San Francisco, Rosalind Cook SERVICE LIST Counsel for Petitioner Tuolumne Jobs & Small Business Alliance Steven A. Herum Brett S. Jolley Ricardo Z. Aranda Herum Crabtree 5757 Pacific Avenue, Suite 222 Stockton, CA 95207 Phone: (209) 472-7700 Fax: (209) 472-7986 sherum@herumcrabtree.com bjolley@herumcrabtree.com raranda@herumcrabtree.com Counsel for Howard Jarvis Taxpayers Association and Citizens in Charge Amicus Curiae for real party in interest and respondent Timothy A. Bittle, Esq. Howard Jarvis Taxpayer Assn. 921 Eleventh Street, Suite 1201 Sacramento, CA 95814 Phone: (916) 444-9950 Fax: (916) 444-9823 Clerk of the Court ofAppeal Fifth Appellate District 2424 Ventura Street Fresno, CA 93721-3004 Clerk of the Superior Court TUOLUMNESUPERIOR COURT 4] West Yaney Avenue Sonora, CA 95370 Counsel for Respondent City of Sonora Richard Matranga City Attorney City of Sonora 94 N. WashingtonSt. Sonora, CA 95370 Phone: (209) 532-4541 Direct: (209) 532-2657 Fax: (209) 532-2739 rdmatranga@msn.com Counsel for Defendant James Grinnell John A. Ramirez Rutan & Tucker LLP 611 Anton Blvd., Suite 1400 Costa Mesa, CA 92626 Phone: (714) 641.5100 Fax: (714) 546-9035 jramirez@rutan.com Counsel for League of California Cities Amicus Curiae for real party in interest Randy Edward Riddle, Esq. Renne Sloan Holtzman & Sakai LLP 350 SansomeStreet, Suite 300 San Francisco, CA 94104 Phone: (415) 678-3800 Fax: (415) 678-3838 Counsel for CREED-21 Amicus Curiae for Petitioner Cory Jay Briggs, Esq. Briggs Law Corporation 99 East “C”Street, Suite 111 Upland, CA 91786 Phone: (909) 949-7115 Fax: (909) 949-7121 Counsel for Pacific Legal Foundation JSerra Catholic High School Amicus Curiae for Real Parties in Amicus Curiae for Real Parties in interest Interest Anthony L. Francois Timothy R. Busch Pacific Legal Foundation Chairman of the Board & 930 G Street Co-Founder Sacramento, CA 95814 JSerra Catholic High School 26351 Junipero Serra Road San Juan Capistrano, CA 92675