Owners of banned guns must register them pursuant to a grandfather
provision, which requires fingerprinting and payment of a fee;
thereafter the gun(s) may be possessed in certain places but cannot be
transferred except to a gun dealer or the police, or outside the state.
(sec. 12285, subd. (b).) Violation of the Act can result in severe
punishment. The sale, gift or loan of a gun on the list is a felony
punishable by up to eight years' imprisonment. (sec. 12880, subd. (a).)
There is a lenity provision for people who possessed a banned gun
before the Act (or the gun was added on) but failed timely to register
it: Such persons are guilty of but an infraction. (Id., subd. (b).)
IV.
     To repeat, under the add-on procedure, the Attorney General must
prove "that the weapon which is the subject of the declaration of
temporary suspension is an assault weapon. If the court finds the weapon
to be an assault weapon, it shall issue a declaration that it is an
assault weapon under Section 12276. . . ." (sec. 12276.5, subd. (f).)
This procedure cannot be upheld.
A.
     "The powers of state government are legislative, executive, and
judicial. Persons charged with the exercise of one power may not
exercise either of the others except as permitted by this
Constitution." (Cal. Const., art. III, sec. 3.) "The legislative power
of this State is vested in the California Legislature which consists of
the Senate and Assembly, but the people reserve to themselves the power
of initiative and referendum." (Cal. Const., art. IV, sec. 1.) The
constitution also vests limited legislative power in the Governor to
veto or sign a bill (Cal. Const., art. IV, sec. 10), and to propose the
annual "Governor's Budget," which begins the budget cycle (Cal. Const.,
art. IV, sec. 12). But judges are given no constitutional grant of even
limited legislative power and thus judges rarely exercise legislative
power.
     The judiciary has no general power to enact or order the enactment
of laws. (Myers v. English (1858) 9 Cal. 342, 349; County of Contra
Costa v. State of California (1986) 177 Cal.App.3d 62, 76-77.) "A
separation of powers does allow for some incidental overlap of
function. [Citation.] But a judicially compelled enactment of
legislation is not an incidental overlap; it is the very exercise of
legislative power itself." (City of Sacramento v. California State
Legislature (1986) 187 Cal.App.3d 393, 399.) The judiciary does
exercise specific legislative power in two cases. First, the judiciary
may order appropriations for self-preservation. (Millholen v. Riley
(1930) 211 Cal. 29, 33-34.) Second, in rare instances the judiciary may
rewrite an initiative statute to secure it from attack. (Kopp v. Fair
Pol. Practices Com. (1995) 11 Cal.4th 607.) Just as the Legislature
cannot reconsider court judgments, the judiciary may not reconsider
legislative "judgments," in other words, amend statutes. (Mandel v.
Meyers (1981) 29 Cal.3d 531, 547-549.) It is the Legislature which
defines crimes. (People v. Knowles, supra, 35 Cal.2d at p. 181.) The
Legislature cannot bestow legislative power on judges. For example, in
Epperson v. Jordan (1938) 12 Cal.2d 61, the California Supreme Court
invalidated statutes which tried to draft members of this court to
write titles for initiative measures because "they purport to confer
nonjudicial duties on the appellate justices . . . ."
     In this case, the "add-on" provisions require a judge, upon
petition of the Attorney General, effectively to amend the list. In so
doing, the judge must determine whether either of the following is
true: The gun is "Another model by the same manufacturer or a copy by
another manufacturer of an assault weapon" on the "list," or the gun is
a newly manufactured or sold firearm "which has been redesigned,
renamed, or renumbered from one of the firearms" on the "list," or
"which is manufactured or sold by another company under a licensing
agreement to manufacture or sell one of the firearms" on the "list."
(sec. 12276.5, subd. (a).) The judge's determination of this issue is
"a declaration that it is an assault weapon under Section 12276." (Id.,
subd. (f).) This "declaration" is, in form and purpose, an expansion of
the statutory "list."
     The Legislature did not intend superior court judges to be mere
rubberstamps. But by what reasoning does a judge determine whether a gun
is merely "redesigned" from another or has modifications or enhancements
which are but "slight?" What is "slight" enough or "redesigned" enough?
These unfettered legislative policy choices illustrate why judges should
not engage in the activity of amending statutes.
     It is true, as the Attorney General points out, that in some cases
administrative agencies may amend lists. For example, as discussed
earlier, the Gun Control Act of 1968 empowers the Secretary of the
Treasury to decide what is "sporting" weaponry for the purpose of
limiting importation. A better analogy is found in the drug arena, where
federal administrative agencies have the ability to classify drugs on
various schedules, a classification which can result in criminal
penalties in some cases. Touby v. United States (1991) 500 U.S. 160 [114
L.Ed.2d 219], upheld a statute allowing the Attorney General of the
United States (or his subdelegate, the Drug Enforcement Agency) to add
new "designer" drugs to the controlled substances categories by means of
an expedited administrative declaration. The United States Supreme Court
sustained this delegation of authority to "legislate" against a
separation of powers challenge, because the statute "set forth . . . an
'intelligible principle' to constrain the Attorney General's
discretion[.]" (500 U.S. at p. 165 [114 L.Ed.2d at p. 227].)
     The Attorney General and amici here see an analogy, because as the
chief law enforcement officer of California, the Attorney General has
the wherewithal to determine when newly "redesigned" or "renamed" guns
appear. In their view the requirement that he obtain the imprimatur of a
judge provides added protection to gun owners. Amici assert: "The [Act]
provides even greater checks than the federal controlled substance law
against potential abuse of such authority by requiring automatic
judicial review to ensure that the Attorney General has complied with
the statutory criteria." But in defending against certain due process
claims, amici argue the add-on hearing is quasi-legislative and the Act
requires "the Attorney General to demonstrate his compliance with the
statutory criteria by a preponderance of the evidence in a trial-type
adversary hearing." This inconsistency highlights the defect in the
Act: The issue at the "trial" is whether the gun should be banned; that
is a legislative question.
     Under the Act the authority to add guns to the list resides with
the judge, not the Attorney General. The judge does not merely review
the Attorney General's exercise of discretion. The ensuing judgment is
not a judgment validating any decision by the Attorney General, it is a
judgment amending the list.
     We agree with the Attorney General that the separation of powers
doctrine does not "prohibit one branch from taking action properly
within its sphere that has the incidental effect of duplicating a
function or procedure delegated to another branch. [Citation.]"
(Younger v. Superior Court (1978) 21 Cal.3d 102, 117, original
italics.) But the Act requires a judge to legislate. That goes too far.
The "add-on" provision of the Act, embodied in section 12276.5, is
unconstitutional and unenforceable.
B.
     Kasler also raises several due process claims, some of which are
based on the inability of some people to participate in or learn about
the "add-on" hearing. There is no general right to participate in or
receive notice of pending legislative hearings and we construe the
suspension ("add-on") hearing to be such a hearing, albeit for that
reason unconstitutional.
     But there is a general right to notice of the law's proscriptions,
which must be sufficiently clear to permit a reasonable person to comply
and provide the authorities with guidelines to prevent arbitrary
enforcement. (People v. Superior Court (Caswell) (1988) 46 Cal.3d 381,
389-390.)
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