How Local Governments Raise Money in the Post-Prop. 13 Era

The Los Angeles Times has this interesting story about the use by local governments of creative sale and lease-back schemes by which they issue debt without securing voter approval. Meanwhile, here is the latest from Sacramento on the Governor's plan to solve the budget crisis. Not much detail.

Tom Campbell's Ideas For Solving The Budget Crisis

Former Congressman and State Finance Director Tom Campbell has penned this article on solving the State's budget crisis. His answer? Compromise. And here is the Sacramento Bee's latest report.

New Initiative Filed To Change Super-Majority Vote Requirements

Here is an article from the Los Angeles Times on the filing of a new initiative that would lower the super-majority requirement for passing a budget. "The California Budget Efficiency Act would retain a super-majority requirement for budgets and taxes but would lower it from the current two-thirds to 55%. As a tactical matter, that would be enough for Democrats to pass budgets as the Legislature currently is constituted." Here is a link to the measure itself.

Bob Egelko on Jerry Brown

Veteran legal affairs reporter Bob Egelko has this interesting story on Jerry Brown's decision to oppose Prop. 8. Not surprisingly, the reaction breaks down around partisan lines--but there's a nice little bite at former AG Deukmejian for suing the Governor in People ex rel. Deukmejian v. Brown, for which he was chastised by the California Supreme Court. (We represented the State Personnel Board in the companion case, Pacific Legal Foundation v. Brown.) Here is an article from the Los Angeles Times on the AG's decision not to endorse the Petitioners' "revision" argument but to offer another, alternative basis for invalidating Proposition 8.

Supreme Court Denies Review In Judicial Perks Case

The Supreme Court denied review yesterday in Sturgeon v. County of Los Angeles. in which the Court of Appeal invalidated county supplements to judicial salaries. So it's up to the Legislature to find a solution. However, it may have other matters on its plate . . . .

More on the Budget Battle

Here is the latest from the Los Angeles Times on last week's budget battle, an article which claims that he Governor is sending conflicting signals regarding the legality of the Democratic plan. And here is an article from the San Francisco Chronicle's web site tonight, on the current stage of budget negotiations. Articles dated earlier today had claimed that progress was being made, but the outlook tonight is more uncertain.

ps. Here's an interesting editorial from the Los Angeles Times urging the repeal of the Constitution's super-majority requirements for budgets and taxes, and proposing some interesting alternatives.

More Proposition 8 Briefs

Here is the right-side up version of the AG's brief, and here is the other brief filed by the proponents (they did not file one in Tyler).

Superior Court Does Not Enjoy Discretionary Immunity From Anti-Discrimination Statutes

The Court of Appeal has rejected the contention that the judiciary enjoys immunity under the California Constitution against claims of discrimination. In DeJung v. Superior Court (no, it's not a writ of mandate proceeding), the court rejected the claim that a superior court had discretionary immunity against a claim based on age discrimination. Here are the crucial two paragraphs, and good they are, too:

"It is true that California trial courts have the constitutional and statutory power to select subordinate judicial officers who will assist the courts’ judges in performing their duties. (Cal. Const., art. VI, § 22 [“The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.”]; § 71622, subd. (a) [“Each trial court may establish and may appoint any subordinate judicial officers that are deemed necessary for the performance of subordinate judicial duties . . . .”].) Certainly, that prerogative includes the discretion to determine which candidate for such a position is best suited to a court’s needs at a given time. But neither the trial judge’s statement of decision nor the Superior Court’s brief on appeal cites any authority for the proposition that in making this determination, courts may apply invidiously discriminatory criteria upon which other employers, including other government entities, are forbidden to rely. Indeed, as already discussed, FEHA specifically provides to the contrary.

Moreover, this remarkable suggestion is inimical to the core governmental responsibility entrusted to the courts: to provide for a public justice system that is unfailingly unbiased and impartial. (See generally Cal. Stds. Jud. Admin., §§ 10.20, 10.21 [courts have duty to refrain from bias in conducting proceedings, and not to discriminate in recruiting for court-appointed positions]; Cal. Code Jud. Ethics, canon 3C [judges shall discharge administrative responsibilities without bias or prejudice; shall exercise the power of appointment impartially on the basis of merit; and shall not engage in conduct that would reasonably be perceived as bias, including bias based on age].) Given this public trust, it is unimaginable that state law could be interpreted correctly as legally empowering the Superior Court itself to discriminate in selecting subordinate judicial officers on a basis prohibited under FEHA."

Commission Can't Continue Preliminary Hearing

Article VI, Section 22 provides: “The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties." Does a commissioner have the power to continue a preliminary hearing in a criminal cases, where the parties disagree over whether a continuance should be granted. No, said the Court of Appeal in Harutyunyan v. Superior Court (here). The matter was contested and involved important rights, such a the defendant's right to a speedy trial.

State's Failure To Pay Local Mandates Violates Prop. 4

The San Diego Superior Court has held that the State's failure to adequately reimburse school boards for dozens of state mandates violates Proposition 4, an initiative constitutional amendment adopted in 1979 that, among other things, requires the State to pay local government when it requires them to implement State policies. The Legislature apparently acknowledged the mandate (according to this story in the Sacramento Bee (here)), but only paid $1,000 per year to fund it. That wasn't enough, said the San Diego Superior Court.

Briefs in Proposition 8 Cases

Here are some of the briefs filed today in the Proposition 8 cases, which are not yet available on the California Supreme Court's website. Here is the answer filed by Respondents Scott and Horton. The brief filed by the Attorney General is here; unfortunately, it was scanned upside down, so to read it you either need to print it or stand on your head in front of your computer. The brief filed by the proponents is here. Of course, the big news is that the Attorney General contends that Prop. 8 is unconstitutional. Interestingly, though, he has a different argument than the Petitioners. He does not claim that Prop. 8 is a revision of the California Constitution; indeed, he says it isn't. Instead, he argues that, even if it is a constitutional amendment rather than a revision, the initiative power doesn't give the electorate the right to take away fundamental rights from a suspect class. Here are articles about the AG's position from the Sacramento Bee (here), the New York Times (here). the Los Angeles Times (here) and the San Francisco Chronicle (here).

More Stories on the Budget Confrontation

Dan Walters in the Sacramento Bee has this article about yesterday's budget events.

Governor Will Veto Democratic Budget Proposal

According to the San Francisco Chronicle (here), Governor Schwarzenegger has said he will veto the Democratic tax proposal passed by the Legislature with a majority vote. Whatever the political or economical wisdom of the veto may be, it will spare the State litigation over whether the budget proposal required a two-thirds vote under the portion of Proposition 13 that requires a super-majority for certain tax increases. Here is the analogous story from the Los Angeles Times.

Can The Democrats Increase State Revenues Without A Two-Thrds Vote?

The Los Angeles Times reports here on a proposal by legislative Democrats to fill state coffers by labeling revenue increases "fees" rather than "taxes," thus avoiding the need for the two-thirds vote required by Proposition 13. We'll provide more details as soon as we get them. And here is the relevant article from the San Francisco Chronicle and here is the corresponding article from the Sacramento Bee. This could get interesting.

Dan Walters' Skeptical Take On A Constitutional Convention

Here is Sacramento Bee columnist Dan Walters on the proposals for a constitutional convention. He is skeptical, not without reason. Why shouldn't the conflict that paralyzes the Legislature characterize a convention, too? And here is a Los Angeles Times article asking whether California is too unwieldy to govern.

Assistance of Counsel Requires Bar Membership

In In re Johnson (1992) 1 Cal.4th 689, 694, the Supreme Court held that “representation by an attorney who has submitted a resignation with disciplinary proceedings pending, and has as a result been placed on inactive status, denies a criminal defendant the counsel guaranteed by article I, section 15 of the California Constitution.” Moreover, the error is reversible per se. Id. at 701. But what if a criminal defendant's lawyer loses his license in the middle of a trial? That's what happened in People v. Vigil (here) and the Court of Appeal held that the defendant was entitled to a new trial, even if the defrocked lawyer did a good job in the last day of a four-day trial.

Supreme Court Denies Review in Judicial Reference Case

The Supreme Court has denied review in Treo@Kettner, the judicial reference/jury waiver case discussed here and here previously. So judicial reference agreements contained in CC&Rs are now unenforceable.

New Pleadings in Proposition 8 Case

San Francisco has filed a motion to amend its petition in its Proposition 8 case. (It has also associated Howard Rice as co-counsel.) The motion to amend is here. Here is the filed second amended petition.

Pleadings in Redevelopoment Challenge

I've posted earlier (here) about the legal challenge brought by the redevelopment agencies against the Legislature's attempt to raid their funds. Here is a copy of the petition and here is the memo filed by the petitioners.

Suit Challenges Redevelopment Fund Raid

According to the Sacramento Bee (here), the California Redevelopment Association, an umbrella organization for local redevelopment agencies has filed a lawsuit challenging the Legislature's attempt in this year's budget trailer bill to "raid" redevelopment funds. The lawsuit is based on Article XVI, Section 16, which provides for the taxation of property located in a redevelopment area. The suit apparently contends that this provision requires that the "tax increment" portion of property located in a redevelopment area--the portion presumably attributable to the redevelopment--be used only for redevelopment related purposes. It's worth noting that previous challenges to the Legislature's attempt to raid local government funds have been unsuccessful.

New PPIC Poll on Proposition 8

The Public Policy Institute of California has released two polls: one on Proposition 8 and the other a more general survey of "Californians and Their Government." Here is a "Capitol Alert" from the Sacramento Bee summarizing the results and here is the analogous article from the San Francisco Chronicle. And here is a link to the PPIC summary of its findings re Proposition 8, a link to the summary of "Californians and Their Government" and a link to the full report. The Prop. 8 survey found that the best predictors of votes on Prop. 8 were religious affiliation and socio-economic status, not race (although they didn't break down the "non-white" category by ethnicity). The poll also says that opposition to same-sex marriage has declined since 2000 and 2004, but has remained constant since 2005. Finally, the broader poll found that, paradoxically, Californians like the initiative process, trusting themselves more than their elected officials, but feel that there are too many initiatives, too much money is spent on them and they are too confusing.

Can the Legislature Suspend Income Tax Indexing?

According to this article by Dan Walters of the Sacramento Bee, the Legislature is considering suspending income tax indexing for a year to help solve the State's budget crisis. But there's a problem. Proposition 7, a statutory initiative adopted in June 1982, requires permanent indexing of the income tax. For the Legislature to "suspend" indexing would therefore seem to conflict with the statute. Accordingly. this would be an impermissible amendment by the Legislature of a statutory initiative. (Prop. 7 does not contain a provision permitting the Legislature to amend it.) Cases such as Franchise Tax Board v. Cory have given a pretty broad reading of what constitutes an amendment to a statutory initiative; the statute enacted by the Legislature doesn't have to formally amend the initiative statute, only to conflict with it.

Environmentalists Rely on California Constitution To Stop Water Diversions

Accpording to this article in the Sacramento Bee, environmentalists are invoking the California Constitution in an effort to stop the diversion of water to irrigate contaminated farmland. This should be interesting. Stay tuned.

Are the State and Local Officials Legally Holding Their Offices?

The oath of office contained in Article XX, Section 3 contains a relic from the McCarthy era: a loyalty oath for state and local office holders. It was ruled invalid in 1967. Yet a group called the Free Enterprise Society complains that all state and local officials are holding office illegally because they haven't taken the oath of office with the full constitutionally-prescribed oath. Carlos Alcala of the Sacramento Bee reports here. Of course, if this group brought a lawsuit, the judges hearing it would have to recuse themselves, because they hadn't taken the supposedly required oath, either. No doubt the "rule of necessity" would kick in, enabling the judges to dispatch this claim with celerity.

California Constitution's Religion Clause Does Not Protect Against Criminal Prosecution for Selling Pot

Did you ever think that the California Constitution prohibits the prosecution of someone selling pot in a "temple" (complete with vending machines) devoted to that purpose? I didn't and, more importantly, neither do the Justices of the Second Appellate District, Division Six. Here is the decision in People v. Rubin, which concludes with the following: "appellant's theory is at variance with not only constitutional law, it is at variance with common sense."

Should State Constitutional Conventions Be More Frequent?

Here is an article in the New Republic that says so. Interestingly, some states have automatic referenda asking their citizens every couple of decades whether they want to hold a convention to revise their state constitution. Here, in California, we haven't had one since 1879--though we did, of course, have a massive revision process in the 1960's and 1970's, courtesy of the Legislature and the Constitution Revision Commission. Given the heterogeneity of our State, a convention would be pretty wild.

ps. Here is a resolution introduced by AssemblymemberBlakeslee that would ask the voters to decide whether there should be a constitutional convention to revise the constitution. Here is an opinion piece from the Los Angeles Times on the Blakeslee resolution and a similar resolution introduced by Mark DeSaulnier, a Democratic legislator. Here is an article from the Contra Costa Times on DeSaulnier and his resolution.