Los Angeles Times Opposes Propositions 5, 6 and 9

The Lost Angeles Times yesterday announced its opposition to three criminal justice initiatives: Proposition 5 (here), Proposition 6 (here) and Proposition 9 (here). The Times also published an op-ed piece today (here) on Proposition 11, the redistricting initiative.

Court of Appeal Limits Single-Subject Rule

In an interesting decision, the Court of Appeal, Second Appellate District, Division Eight, has decided that a city charter amendment placed on the ballot by the city council need not comply with the single-subject rule contained in Article II, Section 8(d). Hernandez v. County of Los Angeles, available here. By its terms, that provision applies only to initiatives, which the Constitution defines in Article II, Section 8(a) as "the power of the electors to propose statutes . . . and to adopt or reject them." A measure put on the ballot by the city council is not proposed by the electors through initiative petitions and thus is not an initiative within Article II, Section 8(c). Similarly, Article XI, Section 3 provides that a charter amendment "may be proposed by initiative or by the governing body," and thus also indicates that a charter amendment put on the ballot by a city council is not an initiative. This reading preserves the ability of city councils to put comprehensive charter amendments on the ballot in a single measure, rather than grouping provisions by subject.

This is an important decision, but it seems unquestionably right, given the language of the California Constitution. There should be no reason for the California Supreme Court to grant review.

New Poll Finds Proposition 8 Trailing And Slim Margins of Support for Propositions 4 and 11

A new poll by the Public Policy Institute of California (here) finds Proposition 8 (banning same-sex marriage) losing and slim majorities in favor of Propositions 4 (requiring parental consent for teenage abortions) and Proposition 11 (which would turn over legislative redistricting to a commission). The poll also shows that a majority of Californian favor reform of the budget process, which 49% supporting decreasing the two-thirds vote requirement to 55% and 60% supporting limits on state spending.

Proposition 4

The Los Angeles Times has an article yesterday (available here) on Proposition 4, the initiative constitutional amendment that would require parental consent for teenage abortions.

Governor To Use Budget Crisis To Push For Proposition 11

According to today's Sacramento Bee (here), the Governor plans to use the recently concluded budget crisis in campaigning for Proposition 11. Whether this will be any more successful than his prior attempts to amend the California Constitution remains to be seen.

Water Bond May Be Delayed Until 2010

As the San Francisco Chronicle explains in this article (here), the Governor wants to put a water bond measure on the California ballot. However, "[u]nder the state Constitution, the Legislature can place bond measures on the ballot only during a regularly scheduled statewide election. The next one is scheduled for June 2010. The governor's staff has indicated that Schwarzenegger would have to use the initiative process if he wants the water question to go before voters next year. To do so, he'll have to use his campaign committee to launch a petition drive and will have to get moving quickly."

More on the Budget Crisis

According to press accounts (such as the one here from the San Francisco Chronicle), the budget deal between the Legislature and the Governor involves (among other things) a "rainy day fund," that would be collected by the state and used only for specified purposes. Indeed, one of the final sticking points in the negotiations was the issue of when the "rainy day fund" could be used. Here's the constitutional issue: given that one legislative body generally can't bind its successors, how does a statute such as the annual Budget Act restrict the Legislature's future ability to tap into the "rainy day fund" for whatever purposes the Legislature then deems appropriate? Or does the deal creating the "rainy day fund" involve submitted a constitutional amendment to the electorate that would create the fund and establish the conditions under which it could be tapped?

Court Reaffirms Charter County Power Over Employee Compensation

In Dimon v. County of Los Angeles (available here), the Court of Appeal for the Second Appellate District, Division Four, held that Article XI, Section 4(f), which gives charter counties the right to control the "compensation" of their employees, exempts a charter county from having to comply with Industrial Welfare Commission regulations regarding meal breaks and failure to pay for missed breaks. The court relied on numerous prior cases, including County of Riverside v. Superior Court, 30 Cal. 4th 278 (2003), in which I represented the county. As a result the decision breaks no new ground; indeed, another Court of Appeal recently resolved a similar claim against the employees. See Curcini v. County of Alameda, 164 Cal. App. 4th 629 (2008). Both cases hold that the "compensation" protected by the constitution against state legislative or regulatory interference includes more than just salaries. The Dimon court also held that (1) the reference to "ordinance" in Article XI, Section 4(f) does not require a charter county to set employee salaries by ordinance, not resolution; and (2) the meal break regulation does not involve a matter of statewide concern.

Because the decision represents only a minimal advance over prior law, if that, it seems unlikely that the Supreme Court would grant a petition for review.

Jury Trial Waivers

In Grafton Partners v. Su0perior Court, 35 Cal. 4th 944 (2005), the Court held that a predispute jury trial waiver violated Article I, Section 16 of the California Constitution. That constitutional provision provides, among other things, that the right to a jury trial may only be "waived by consent of the parties expressed as prescribed by statute." Because the Legislature has never authorized predispute jury trial waivers, they are unconstitutional and thus unenforceable. (Howard Rice represented the Petitioners in that case.)

The Court of Appeal, Fourth Appellate District. Division One, has now decided that a provision authorizing judicial reference in CC&Rs promulgated by a developer is also unconstitutional and unenforceable. Treo @ Kettner Homeowners Ass'n v. Superior Court, available here. The developer of a condominium project recorded CC&Rs for the project, which contained a provision mandating judicial reference for any disputes between the developer and the condo owners or their association. When a construction defects dispute arose, the developer moved for judicial reference, the trial court granted the order, and the plaintiff sought a writ of mandate from the Court of Appeal.

Section 638 provides the a referee may be appointed "upon the motion of a party to a written contract or lease that provides that any controversy arising therefore shall be heard by a referee if the court finds that a reference agreement exists between the parties." The court acknowledged that CC&Rs are enforceable under some circumstances, but held that they were not the sort of "contract" that the Legislature intended to authorize in Section 638.

CC&Rs are generally entered into between a developer and a homeowners' association that the developer forms. As a result, as the court stressed, the homeowners who ultimately buy into the development do not assent to the CC&Rs, but merely acquire property with legal notice thereof. The court therefore found that the CC&Rs were not the sort of "contract" that could waive a jury by authorizing judicial reference: "Treating CC&R's as a contract such that they are sufficient to waive the right to trial by jury does not comport with the importance of the right waived. CC&R's are notoriously lengthy, are adhesive in nature, are written by developers perhaps years before many owners buy, and often, as here with regard to the waiver of trial by jury, cannot be modified by the association. Further, the document is not signed by the parties."

Assuming that this decision survives the inevitable petition for review, the question this leaves open is whether judicial reference agreements are enforceable if they are contained in adhesion contracts that, in contrast to CC&Rs, are signed by the parties. That will be an interesting battle.

Proposition 11 and the Budget Stalemate

Would passage of Proposition 11 make the Legislature less partisan and less prone to budget stalemates? A new study by the Public Policy Institute of California says no, in a report available here, but the Sacramento Bee's Dan Walters disagrees (here). (Thanks to Rick Hasen's Election Law Blog for linking to the Dan Walters article.)

Court of Appeal Upholds Mobile Advertising Ban

in a 2-1 decision, the Court of Appeal, Second Appellate District, has upheld the City of West Hollywood's ban on "mobile commercial advertising." Showing Animals Respect and Kindness v. City of West Hollywood, available here. The challenged ordinance defined "mobile commercial advertising" as "any vehicle, or wheeled conveyance which carries, conveys, pulls or transports any sign or billboard for the primary purpose of advertising." However, the ordinance exempted buses, taxicabs, and any vehicle which displayed advertising or business identification of the owner, as long as the vehicle was engaged in the owner's normal business.

In an opinion by Justice Rothschild, the majority held that the ordinance applied to both commercial and non-commercial speech, that it was content-neutral, that it served significant governmental interests in promoting traffic safety, reducing air pollution and improving the city's aesthetic appearance of the city, and that it left the plaintiff--an animal rights group--ample alternative means of communication. In contrast, Justice Mallano's dissent argued that the ordinance should be interpreted as applying only to commercial speech, which would have rendered it inapplicable to plaintiff. He asserted, unlike the majority, that "the First Amendment protects the right of a vehicle owner to drive on public streets for the primary purpose of conveying a noncommercial message that appears on the vehicle."

Although the plaintiff contended that the ordinance violated both the federal and the state constitution, both the majority opinion and the dissent focused exclusively on the federal constitution. Neither addresses whether the state constitution might provide greater protection in this context than its federal counterpart.

Although there are lots of cases addressing the First Amendment implications of billboard advertising, this may be the first case involving an almost total ban on advertising placed on vehicles. None of the cases cited by either the majority or the dissent involves a local ordinance similar to the West Hollywood one. That may make the case review-worthy, particularly if the plaintiff can show that other cities have similar laws.

The Budget Crisis and the California Constitution

The Bay Area Council isn't the only group thinking about reforming the California Constitution. Here's a paper by David S. Gamage, to be published in a forthcoming book on Proposition 13, that analyzes the reasons for California's recurring budget crises and proposes some solutions, such as doing away with the two-thirds requirement to pass a budget, requiring that initiatives be revenue-neutral or self-funding (take that, Howard Jarvis Taxpayers Association!) and putting the state's revenue from the income tax on capital gains into a "rainy-day fund." It will be interesting to see if the political will to adopt these changes--or any other changes--results from the current budget stalemate, now in its third month.

Bay Area Council Calls For Constitutional Convention

Spurred by the ongoing budget stalemate, the Bay Area Council has called for a constitutional convention to revise the California Constitution. Its opinion can be accessed here. We'll keep you posted.