October 18, 2013

California Supreme Court blesses government shenanigans keeping initiatives from voters

By California Supreme Court blesses government shenanigans keeping initiatives from voters

The California Supreme Court this week denied review in Mission Springs Water District v. Verjil, a case our friends at the Howard Jarvis Taxpayers Association litigated.  Not only did the Court deny review, it did so in record time—a single day—before PLF had time to file a letter brief urging the Court to take the case.  This is unfortunate, as the California Court of Appeal’s decision is obviously wrong and sets dangerous precedent.  Contrary to the state Constitution and existing case law, the decision licenses governments to avoid placing qualifying initiatives on election ballots.  Remarkably, the decision also condones governments suing initiative proponents.  As Howard Jarvis noted in its Petition for Review,

[I]f public officials can prevent initiatives they oppose from ever seeing the light of day, and if the proponents of such initiatives are rewarded for their time and sacrifice by getting dragged into court for years of expense defending an idea that was never even presented to the voters, then the right of initiative may as well not exist, for no sane person would exercise it.  (emphasis added).

Here’s what happened.  In November 2011, Desert Hot Springs residents collected enough signatures to qualify two voter initiatives for the ballot.  Both sought to combat the local water district’s skyrocketing rate increases for water and sewer services.  The Registrar of Voters, in accordance with California’s Election Code, notified the District that the initiatives qualified for the ballot.  At that point, the District had a legal duty to place the initiatives on the November 2011 ballot.  But it refused.  Instead, it sued the initiative’s sponsors!

That’s right, the citizens who spent their time and energy collecting signatures to qualify the measures for the ballot, suddenly found themselves defending a lawsuit against the very government entity whose behavior the initiatives were designed to curb.  Howard Jarvis represented the sponsors and filed an “anti-Slapp” (“Strategic Lawsuit Against Public Participation”) motion—a protective measure available to people who are sued as a result of exercising their First Amendment rights in public matters.  The trial court denied that motion and allowed the case to go forward.  The Court of Appeal largely upheld the trial court’s decision with the result that the District may continue its lawsuit against the ballot proponents.

The strange thing about this case is that California courts, and the Supreme Court in particular, have a long history of zealously protecting the people’s initiative power.  Since the initiative process was adopted into the Constitution in 1911, case after case has upheld measures against attack, and protected this special type of direct legislation by the people from judicial usurpation.

As the Supreme Court has noted, the initiative’s purpose is to be a “safeguard which the people should retain for themselves to supplement the work of the legislature by initiating those measures which the legislature either viciously or negligently fails or refuses to enact; and to hold the legislature in check.”  And because the people’s exercise of the initiative power is a direct expression of their political sovereignty, courts have a “solemn duty jealously to guard the sovereign people’s initiative power” and to “resolve any reasonable doubts in favor of the exercise of this precious right.”

On a very practical level, the Election Code safeguards this power by specifying how challenges to initiatives must occur.  There is a 10-day public examination period after the Registrar places initiatives on the ballot during which time anyone may file an action challenging the initiative on procedural or jurisdictional grounds.  Courts grant such actions expedited scheduling so that they are resolved before the election.  Anyone wishing to challenge an initiative on its merits must wait until after the election so as not “to disrupt the electoral process by preventing the exercise of the people’s franchise.”

Here, the District’s challenge was substantive, rather than procedural or jurisdictional.  It claimed that the scope of the two initiatives exceeded the scope of the initiative power, and that if enacted, the District would not have enough revenue to pay its bills.  That is precisely the type of challenge that the Court has determined should be heard after an election, if the initiative passes.  And yet the Supreme Court turned a blind eye to this blatant contradiction of its prior holdings.

That is especially significant here because the type of initiative at issue in this case—one curbing government authority—embodies the most important and valid use of the initiative power.  As the California Supreme Court noted in a case dealing with legislative term limits, the initiative plays an important role in instituting reforms which the Legislature itself would be unlikely to adopt.  It reasoned that “as a practical matter,” overturning initiatives would “insulate the Legislature from any severe reform measures directed at that branch and initiated by the people.”  And that “result seems inconsistent with the fundamental provision of our Constitution placing all political power in the people.”

This decision has troubling ramifications for the ability of taxpayers to use the initiative process to hold government accountable.  If agencies can legally refuse to place qualifying initiatives on the ballot because they claim that the substance of the initiative exceeds the people’s initiative power—they can defeat all initiatives.  For by the time litigation runs its course, the election will have long past and even a victory on the merits will be merely pyrrhic.

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