Separation of Powers--Proposition 59

On August 19, 2008, the Court of Appeal decided Zumbrun Law Firm v. California Legislature, which can be found here. Among other things, the plaintiff in that case (the former head of the Pacific Legal Foundation) claimed that a contract for construction of security improvements at the State Capitol violated the separation of power mandated by Article III, Section 3. The court held that the separation of powers had not been violated because Article IV, Section 7 gives the Legislature ancillary power to protect its lawmaking function, including the power to protect its own safety and security. Indeed, Article IV, Section 7(c)(1)(B) expressly provides that closed sessions of the Legislature may be held "[t]o consider matters affecting the safety and security of Members of the Legislature or its employees or the safety and security of any buildings and grounds used by the Legislature." The court held that the Legislature's power to consider such matters in closed session necessarily included the power to act on them. The court also held that the Legislature had properly delegated the power to contract for these improvements to the Joint Rules Committee. These holdings seem unexceptionable and is an unlikely candidate for Supreme Court review.

The Court of Appeal also held that the exceptions to disclosure contained in the Legislative Open Records Act had not been repealed by Proposition 59. Proposition 59 specifically grandfathered existing law relating to disclosure and open meetings, by enacting Article I, Section 3(b)(5) and (6), and the court, not surprisingly, interpreted these provisions literally. This holding, too, is unlikely to warrant review by the California Supreme Court.