Do "actions to recover damages arising out of the operation or use of a motor vehicle" include a product-liability suit filed because a motorist allegedly was injured in a collision due to a defective automobile? In Hodges v. Superior Court, 21 Cal. 4th 109 (1999), the California Supreme Court answered no.

The court decided that despite limitations on civil claims Proposition 213 imposed on uninsured motorists, the motorists remain free to pursue product-liability claims against vehicle manufacturers. The way the court reached that answer provides a road map for further interpretation of Proposition 213 and other tort-reform ballot initiatives.

Proposition 213 was a statutory ballot initiative passed by California's voters in 1996 and now codified at Civil Code sections 3333.3 and 3333.4. It provides that uninsured motorists cannot recover for noneconomic or pain-and-suffering "in any action to recover damages arising out of the operation or use of a motor vehicle."

Before the vote on Proposition 213, voters were bombarded with arguments for and against the initiative that appeared heavy on sloganeering and short on analysis, as happens with many ballot initiatives. For example, the proponents of Proposition 213 spoke of the need "to restore balance to our justice system by limiting the right to sue of uninsured motorists" because, under the prior law, "uninsured motorists [could] sue [insured] citizens for huge monetary awards in addition to being compensated for medical and other expenses ... [that] cost Californians who play by the rules and obey the law $327 million every year!"

Accordingly, proponents asked voters to "[r]eform an unfair system that rewards lawbreakers and punishes those who play by the rules. Vote yes for personal responsibility."

The opponents, for their part, countered that Proposition 213 was simply "the Insurance Lobby's newest No-Fault scheme" designed to "reward reckless drivers who hit innocent poor people."

Neither side substantiated the sound-bite positions by reference to actual language from the initiative. But the pro-and-con arguments were quite persuasive to the Hodges court as it determined the meaning of Proposition 213 by querying the electorate's purpose in passing the initiative.

Hodges' guiding principle for initiative interpretation is that a court "may not properly interpret the measure in a way that the electorate did not contemplate: the voters should get what they enacted, not more and not less." Because the court found Proposition 213 unclear on the issue of whether automotive product-liability actions arise "out of the operation or use of a motor vehicle," it looked "beyond the literal words of the provision" to the arguments contained in Proposition 213's ballot pamphlet in an effort to uncover what the electorate thought they had enacted.

And because the pro-Proposition 213 arguments emphasized that the measure was intended to benefit insured motorists, the court decided that Proposition 213 was neither intended to punish uninsured motorists nor intended to benefit vehicle manufacturers.

Accordingly, the court found nothing in the legislative history of Proposition 213 that suggested the voters intended to shield vehicle manufacturers from pain and suffering claims of uninsured motorists, and, absent "a clear expression of such intent," the court declined to adopt the "literal interpretation" of Proposition 213, which would have had that effect.

Justice Kathryn Werdegar's concurring opinion expressed concern with the majority's "broadly nontextual approach to statutory interpretation." According to Werdegar, the courts should "focus first on the language" of a ballot initiative – much as with any piece of legislation. At times, this initial inquiry will be sufficient yet "mean that the law has consequences that the voters did not specifically contemplate."

Although Werdegar acknowledged that giving the voters more or less than they thought they enacted is a desirable end, she cautioned that the majority's approach was ill-advised because it provides little incentive for careful legislative drafting. Only when a law's terms are "critically ambiguous" or when a literal interpretation would "create a logically absurd application of the law" should the courts look beyond the terms of the statute actually enacted, according to Werdegar.

She believed, however, that "arising out of operation or use" of a motor vehicle was one such critically ambiguous phrase and that the majority properly construed the language in reference to its legislative history.

The more fundamental problem with Hodges' approach appears to be with the belief that it is even possible to divine the electorate's true "purpose" in passing an initiative, particularly from the sound-bites offered by those interested in passing or stopping a measure.

Even the majority verged on acknowledging that there is no necessary correlation between what the proponents of an initiative argue and what the voters believe they are enacting. The court noted that Proposition 213's author, Insurance Commissioner Chuck Quackenbush, had testified about Proposition 213's application to product-liability causes of action in a public hearing on the initiative.

The court discounted this extra-textual evidence as irrelevant to the voters' intent in passing Proposition 213, because "[t]here is no necessary correlation between what the drafter understood the text to mean and what the voters enacting the measure understood it to mean." Likewise, there is "no necessary correlation" between what partisans say an initiative means and what the voters intended.

If materials like ballot pamphlet arguments are to be considered "legislative history," perhaps they should be read with their persuasive purpose in mind. Consider that the proponents of Proposition 213 might have believed that they had to make the initiative significant to the lives of individual voters in order to achieve passage. In that circumstance, it would not be surprising that the proponent's ballot arguments would speak only of the effect of Proposition 213 on individual motorists who purchase insurance policies – even if the initiative was drafted more broadly with the intention to also shield vehicle manufacturers from product liability suits.

Of course, the majority's approach carries a certain element of justice. Because the text and import of initiatives can be difficult to understand, even for trained lawyers, perhaps it is safe to assume that the public does rely on the ballot arguments of proponents and opponents in deciding whether to vote. And if the proponents of a ballot initiative do gloss over the true scope of their proposed legislation in the course of a sound-bite campaign to acquire passage, the majority's approach provides a means by which the proponents can be held to those "campaign pledges" and lessens the chance that the public will unwittingly pass a statute unaware of its true scope or impact.

Now that Proposition 213 has been in place for a few years, the state's courts are being asked to explain the meaning of some of the facially broad language of this statute, and open questions about the scope of Proposition 213 remain. For example, the Supreme Court noted in Hodges that Proposition 213 might apply in an action by one uninsured motorist against another.

In a case decided a few weeks after Hodges, the 3rd District Court of Appeal declined to inquire into the purpose behind Proposition 213 in interpreting another portion of the initiative. Savnik v. Hall, 88 Cal. Rptr. 2d 417 (1999). The Savnik court held that Proposition 213 does not bar an uninsured passenger from recovering noneconomic damages from an insured driver as long as the passenger is not an actual owner of the uninsured vehicle, regardless of whether the passenger is listed as a "registered owner" of the vehicle with the Department of Motor Vehicles.

Nevertheless, as much remains undecided about the scope and meaning of Proposition 213, the Hodges approach to initiative construction may make close scrutiny of the campaign for the initiative worth while. And as counsel draft and ask the public to pass or defeat new tort-reform ballot initiatives, it might be worth keeping in mind that under Hodges, what proponents say an initiative means may be as important as the text of the initiative itself.