Court of Appeal Reaffirms That Initiative Can't Be Used To Compel Legislative Action

In Widders v. Furchtenicht, the Court of Appeal, Second Appellate District, Division Six, has reaffirmed that initiatives can only be used to enact statutes, not to compel future legislative action. In this decision (available here), the Court also held that the City Attorney had acted properly in seeking a judicial declaration that he had no duty to prepare ballot titles and summaries for two proposed (and clearly invalid) measures.

The two measures were clearly beyond the initiative power as construed in AFL-CIO v. Eu, 36 Cal. 3d 687 (1984), and Marblehead v. City of San Clemente, 226 Cal. App. 3d 1504 (1991). Of the two measures, one directed the local city council to “urgently consider and take measures” to deter or prohibit national chains or franchise operations within the city while the other ordered the city council to “urgently consider and take measures” to address affordable housing. However, neither measure enacted a statute. Accordingly, both were outside the initiative power which, under Article II, §8(a) of the California Constitution is limited to the adoption of “statutes.”

This decision breaks no new ground in its interpretation of the California Constitution. Indeed, the most mysterious thing about it is why the ACLU Foundation of Southern California decided to represent the proponent of the plainly invalid measures.