Filed 8/12/26 Bonta v. Superior Court CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
ROB BONTA, as Attorney General, etc., C106933
Petitioner,
(Super. Ct. No.
v. 26WM000199)
THE SUPERIOR COURT OF SACRAMENTO
COUNTY,
Respondent;
ROBERT GUTIERREZ et al.,
Real Parties in Interest.
Petitioner the Attorney General of the State of California drafted language for the
ballot title and summary and ballot label for Proposition 41. Proposition 41 is a proposed
amendment to the California Constitution that would prohibit any new state tax from
being implemented that would exempt new tax revenues from an existing constitutional
limit, require the California State Auditor to prepare and publish audits of programs that
may or do receive revenues from proposed or enacted special taxes, and would nullify
any conflicting measure enacted since January of 2026. Real parties in interest Robert
Gutierrez and the California Taxpayers Association brought a petition for writ of mandate
in the superior court challenging the ballot title and summary and the ballot label and
seeking, inter alia, to revise the ballot title and summary and ballot label to insert the
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word “public” before “audits.”1 Real parties in interest claimed the ballot title and
summary and ballot label are misleading and prejudicial in that they do not accurately
identify the chief purpose and points of the measure by omitting the word “public” in
describing the proposed audits. Respondent court agreed, reasoning that the ballot
materials do “not substantially comply with [the] requirement that ‘chief points’ be
identified, because [they omit the] term ‘public’ from public audits.” Consequently,
respondent court granted the requested relief in mandate and entered an order and
judgment that directs the Attorney General to revise the ballot title and summary and
ballot label to insert the word “public” before “audits.” By way of mandate filed in this
court, the Attorney General challenges that decision.
We conclude that clear and convincing evidence does not support respondent
court’s conclusion that the Attorney General’s language for the ballot title and summary
as well as the ballot label, which incorporates a condensed version of the ballot title and
summary, fails to accurately describe Proposition 41 in terms that are not misleading or
that otherwise is not in accordance with the Elections Code. (Elec. Code,2 §§ 9051,
subds. (b)(1), (e), 9092; see also Gov. Code, § 88006.) Moreover, respondent court failed
to accord the discretion due to the Attorney General in drafting ballot materials.
Accordingly, we shall issue a peremptory writ of mandate directing respondent court to
deny real parties in interest’s petition for writ of mandate and thereby allow the Attorney
General’s originally drafted language for the ballot title and summary and ballot label to
be used in ballot materials.
1 Other real parties in interest are the Secretary of State and the Office of State
Printing, which take no position on the merits here. Subsequent references to real parties
in interest are to Robert Gutierrez and the California Taxpayers Association, except
where noted.
2 Undesignated statutory references are to the Elections Code.
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FACTUAL AND PROCEDURAL BACKGROUND
I. Proposition 41
In 1979, California voters approved Proposition 4, which established a
constitutional restriction on the amount of tax revenue that state and local governments
can spend each fiscal year, known as the “Gann Limit.” (Cal. Const., art. XIII B, § 1; see
Paradise Irrigation Dist. v. Commission on State Mandates (2019) 33 Cal.App.5th 174,
190.) When the state receives tax revenues that exceed the spending limit, half of those
excess revenues must be transferred to the State School Fund to provide support to
schools, and the other half must be refunded to the taxpayers. (Cal. Const., art. XIII B,
§ 2; id., art. XVI, § 8.5.) Proposition 41 has three components. First, it would prohibit
implementation of any new state tax, passed after January 1, 2026, if its revenues are
exempted from the Gann Limit. Second, it would require (i) preelection audits of
programs that would receive funding from a voter-proposed state special tax, and
(ii) ongoing audits of programs funded by all new state special taxes. These audits would
be conducted by the California State Auditor and are required to address numerous
matters related to the programs under review and make certain recommendations.
Finally, Proposition 41 states that it nullifies any conflicting measure (e.g., a measure that
exempts special tax revenues from the state spending limit), including measures voted on
at the same election.
II. Ballot Title and Summary and Ballot Label
Pursuant to his statutory obligation, the Attorney General was tasked with
preparing and submitting to the Secretary of State a title and summary for the measure,
which included the Legislative Analyst’s statement of the fiscal impact of the measure.
(§§ 9050, 9051.) The title and summary “shall not exceed 100 words, not including the
fiscal impact statement.” (§ 9051, subd. (a)(1).) Including the fiscal impact statement,
the title and summary the Attorney General drafted for Proposition 41 states:
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“PROHIBITS NEW STATE TAXES THAT EXCLUDE REVENUES FROM
STATE SPENDING LIMIT. REQUIRES AUDITS FOR NEW STATE SPECIAL
TAXES. INITIATIVE CONSTITUTIONAL AMENDMENT
“Prohibits any new state taxes that exclude their revenues from the state spending
limit approved by voters in 1979.
“For statewide special taxes, requires (1) a pre-election audit of programs that
would receive funding from a voter-proposed special tax, and (2) recurring audits of
programs funded by special taxes enacted after January 1, 2026.
“States that other voter-approved measures appearing on the same ballot are void
if they conflict with this measure and this measure receives more affirmative votes.
“Summary of Legislative Analyst’s Estimate of Net State and Local
Government Fiscal Impact
“Unknown net fiscal effect. Increased costs for the California State Auditor to
implement new one-time and ongoing audit requirements of programs funded by special
taxes. These costs would be mostly paid from the new revenues collected from the
special taxes. Possible savings associated with implementing recommendations from the
audits.” (Bullets omitted.)
The Attorney General was further tasked with preparing a ballot label not to
exceed 75 words, which must be “a condensed version of the ballot title and summary
including the financial impact summary.” (§ 9051, subd. (b)(1); see also § 303,
subd. (b).) Here, the complete ballot label submitted by the Attorney General to the
Secretary of State, including the Legislative Analyst’s fiscal impact summary, contains
the following language:
“PROHIBITS NEW STATE TAXES THAT EXCLUDE REVENUES FROM
STATE SPENDING LIMIT. REQUIRES AUDITS FOR NEW STATE SPECIAL
TAXES. INITIATIVE CONSTITUTIONAL AMENDMENT. Nullifies state taxes
enacted after January 1, 2026 that exempt their revenues from voter-approved state
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spending limit. Requires pre-election and recurring audits of programs funded by new
special taxes. Fiscal Impact: The net fiscal effect is unknown as it depends on future
decisions by voters, the Legislature, and other policymakers.”
III. Proceedings In Respondent Court
Real parties in interest filed a petition for writ of mandate in the superior court on
July 30, 2026, challenging the ballot title and summary and the ballot label on the ground
that they failed to accurately describe the measure’s real purpose, to mandate public
audits by the California State Auditor, and asserting that the Attorney General’s language
thereby fell “short of a true and impartial statement of the chief purpose and points of the
measure.” Significantly, real parties in interest clarified in their briefing that they were
not arguing that the ballot title and summary or ballot label were false, misleading, or
impermissibly infected with bias. Rather, they argued that the title and summary and
ballot label failed to comply with the statutory requirement for ballot materials to inform
the voters of the “ ‘character and purpose’ ” of the proposed measure by inadequately
setting forth the measure’s “ ‘chief purpose and points.’ ” Real parties in interest sought
to revise the ballot materials to (1) insert the word “public” before audits and (2) state
that audits are conducted by the State Auditor.
Respondent court set the matter for hearing on August 7, 2026, and provided its
decision on August 10, 2026. Respondent court found that real parties in interest had not
met their burden of proof as to the inclusion of the term, “State Auditor,” reasoning that
“[r]easonable minds could disagree as to sufficiency of the title and summary and ballot
label in this regard, and this Court defers to the significant latitude and discretion
afforded the Attorney General in preparing ballot materials.” But as to the inclusion of
the word “public,” the court reasoned, “[t]he text of Prop[osition] 41 makes clear that
audits are public, and for the public, in that they are publicly available, and [the] public
can submit input on audits. [The t]itle and summary does not substantially comply with
[the] requirement that ‘chief points’ be identified, because it omits [the] term ‘public’
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from public audits.” Respondent court directed the Attorney General to add the word
“public” before the word “audits” in the ballot title and summary and ballot label.
Immediately following entry of respondent court’s written order and judgment on
August 10, 2026, the Attorney General filed the current petition for writ of mandate in
this court. The same day, this court issued a temporary stay and advised the parties that
we were considering issuing a peremptory writ in the first instance and that any
opposition was to be filed on or before 12:00 p.m. on August 11, 2026. (See Palma v.
U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.) Having received real parties in
interest’s opposition, we rule as follows.
DISCUSSION
The Elections Code requires the Attorney General to prepare a ballot title and
summary that “give[s] a true and impartial statement of the purpose of the measure in
such language that the ballot title and summary shall neither be an argument, nor be
likely to create prejudice, for or against the proposed measure.” (§ 9051, subd. (e); see
§ 9050.) These materials “must reasonably inform the voters of the character and
purpose of the proposed measure” while avoiding “ ‘misleading the public with
inaccurate information.’ ” (Yes on 25, Citizens for an On-Time Budget v. Superior Court
(2010) 189 Cal.App.4th 1445, 1452 (Yes on 25).) “In preparing the ballot title and
summary and the ballot label, the Attorney General is afforded considerable latitude.”
(Ibid.) The Attorney General must exercise “judgment and discretion in discerning the
chief purposes and points of an initiative measure” and must present this information “in
clear and understandable language.” (Ibid.) “ ‘ “As a general rule, the title and summary
prepared by the Attorney General are presumed accurate, and substantial compliance with
the ‘chief purpose and points’ provision is sufficient.” ’ ” (Lungren v. Superior Court
(1996) 48 Cal.App.4th 435, 439-440.) “ ‘[T]he title and summary need not contain a
complete catalogue or index of all of the measure’s provisions and “if reasonable minds
may differ as to the sufficiency of the title, the title should be held sufficient.”
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[Citation.]’ ” (Tinsley v. Superior Court (1983) 150 Cal.App.3d 90, 108, quoting Amador
Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208,
243, citing People v. Frierson (1979) 25 Cal.3d 142, 187.) Further, while the Elections
Code expressly allows a challenge to be made concerning ballot materials, “[a]
peremptory writ of mandate shall issue only upon clear and convincing proof that the
copy in question is false, misleading, or inconsistent with the requirements of this code or
Chapter 8.” (§ 9092; see also Gov. Code, § 88006.)
Real parties in interest argue, and respondent court agreed, that the Attorney
General’s language does not substantially comply with the requirement that ballot
materials inform the voters of the character and purpose of the proposed measure because
it fails to adequately set forth the measure’s “ ‘chief purpose and points’ ” by omitting the
term “public” from public audits. They contend that without the descriptor “public,” the
word “audits” is too generic. But the Attorney General responds that “a general
description is not the same as one that is false or misleading.”
This court’s reasoning in Becerra v. Superior Court (2017) 19 Cal.App.5th 967 is
instructive. There, the real party in interest brought a similar challenge to ballot initiative
language and the superior court likewise granted the writ. (Id. at pp. 970-971.) The
ballot initiative sought to repeal new gas taxes and fees imposed by certain legislation.
(Id. at pp. 971-973.) The Attorney General submitted a title and summary stating that the
initiative eliminated funding for certain projects by repealing “ ‘revenues.’ ” (Id. at
p. 973.) The real party in interest challenged this language, arguing it did not provide a
true and impartial statement of the chief purposes and points of the measure because it
“ ‘omitt[ed] the words “tax” and “fee” ’ ” and used the word “ ‘revenues’ ” instead. (Id.
at p. 974.) This court agreed with the Attorney General that the language did not mislead
voters or create prejudice against the measure, reasoning, “There will always be a
multitude of ways in which any initiative or ballot proposal ‘could have’ been described.
That is the nature of language. But the Elections Code has not made the courts the
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drafters of titles and summaries. That role has been assigned to the Attorney General.
Our task is not to compose but to review the language composed by the Attorney General
for accuracy and impartiality. Perhaps better words could be chosen or arranged
differently but there is no basis to conclude that the Attorney General’s work product is
inaccurate, argumentative or misleading, or otherwise beyond the bounds of the extensive
discretion reposed in that office in fashioning a title and summary.” (Id. at pp. 979-980.)
Such is the case here. While the ballot materials certainly could have described
the proposed audits as “public audits,” it is not inaccurate or misleading to simply use the
word “audits,” nor does this language fail to describe the chief points of the measure.
The language specifies that the audits concern only statewide special taxes. It goes on to
describe how there will be audits at two different periods: preelection audits and
recurring audits. Moreover, it describes the particular subjects of the audits. Finally, the
“Summary of Legislative Analyst’s Estimate of Net State and Local Government Fiscal
Impact,” which is included in the ballot title and summary, refers to “[i]ncreased costs for
the California State Auditor to implement new one-time and ongoing audit requirements
of programs funded by special taxes.” (See § 9051, subd. (a)(2).) Together, the language
makes clear to the reader the purpose and nature of the audits and the fact that it is a
public agency that conducts the audits. We conclude the Attorney General’s language
summarizing the chief points of the measure falls within the range of reasonably differing
opinions, which does not “rise to the level of clear and convincing proof” that the
challenged language is false, misleading, or inconsistent with the requirements of the
Elections Code. (Yes on 25, supra, 189 Cal.App.4th at p. 1454; see id. at pp. 1452-1453.)
DISPOSITION
Having complied with the procedural requirements for issuance of a peremptory
writ in the first instance, we are authorized to issue the writ forthwith and without oral
argument. (See Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th
1233, 1243-1244; Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d 171.) Let a
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peremptory writ of mandate issue vacating respondent court’s August 10, 2026, order and
judgment for peremptory writ of mandate and entering a new and different order denying
real parties in interest’s mandate petition.
This decision is final forthwith as to this court. (See Cal. Rules of Court,
rule 8.490(b)(2)(A).) The temporary stay order issued by this court on August 10, 2026,
which directed the State Printer not to use or begin preparation of certain ballot materials
for Proposition 41, is vacated. Respondent court’s order and judgment of August 10,
2026, directing the Attorney General to make changes to the ballot label, title, and
summary for Proposition 41 is stayed pending finality of this decision for purposes of
review.
The parties shall bear their own costs. (See Cal. Rules of Court,
rule 8.493(a)(1)(B).)
/s/
EARL, P. J.
We concur:
/s/
HULL, J.
/s/
MAURO, J.
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