Supreme Court Grants Review in Jury Trial Case

Yesterday the California Supreme Court granted review in Franchise Tax Board v. Superior Court, which raises the issue of when a jury trial is required in tax refund cases. Our earlier post on the Court of Appeal's decision (which had held in favor of a jury trial) is here.

Filing Foreign Lawsuit Not Protected By Anti-SLAPP Statute

In Geussous v. Chrome Hearts (here), the court held that filing a lawsuit in a foreign country does not constitute protected conduct under the anti-SLAPP statute, Code of Civil Procedure Section 425.16. The constitution protects the right to petition one's own government, said the court, not a foreign government.

Why Is A Part-Time Legislature A Bad Idea?

Let me count the ways, says Steve Maviglio, the leader of the opposition committee, here in Calitics. If you want California governed like Texas, it seems like a great idea.

Want To Protect Marriage?

A proposed initiative takes the logical next step. The Los Angeles Times reports here.

"Pay First" Rule Does Not Apply To Local Taxes

In City of Anaheim v. Superior Court, the Court of Appeal ruled that the "pay first" rule embodied in Article XIII, Section 32 does not apply to local taxes. That rule requires a taxpayer seeking to challenge a tax to pay the tax first and file a lawsuit second. The court also held that there was no general public policy requiring the payment of taxes before litigation to make the rule applicable where the local tax at issue did not have a "pay first" provision and the tax had never been collected.

Court Commissioner Can Summarily Deny Habeas Petition

Article VI, Section 22 of the Constitution authorizes the Legislature to authorize superior courts to appoint commissioners to perform "subordinate judicial duties." Does this extend to summarily denying petitions for habeas corpus filed by state prisoners? The Court of Appeal for the Third Appellate District has said "yes," in Gomez v. Superior Court (here). The rationale is that the constitutional provision was intended to give the Legislature power to authorize commissioners to perform the duties they had prior to 1966, when this portion of the constitution was revised, and these duties included summarily denying petitions for habeas corpus. The court also relied on cases holding that mandate proceedings do not result in a "cause" that requires oral argument until an alternative writ or order to show cause issues.

This case may be right on logic, but it's a horrible result. Indeed, even the Attorney General sided with the petitioners on this one. The opinion seems driven more by concern for small counties with few judges but large prisons than the right of a prisoner to have his claims reviewed by a "real" judge. Indeed, the opinion starts out with the observation that "State prison inmates are a litigious bunch when it comes to filing writ petitions challenging conditions of confinement or raising a multitude of other grievances." It's downhill from there. The California Supreme Court should grant review and revisit its prior decision in Rooney v. Vermont Investment Corp., 10 Cal. 3d 351 (1973), the principal basis for the Court of Appeal's holding.

Is California Forward Targeting Sinclair Paint?

In 1997, the Supreme Court decided, in a case called Sinclair Paint v. Board of Equalization, that the Legislature can raise fees without the two-third vote required for raising taxes. A proposed initiative constitutional amendment sponsored by California Forward seeks to circumscribe that authority, at least where the Legislature is seeking to replace lost tax revenue. Does this circumscribe Sinclair? Calbuzz reported last week that it did; here is California Forward's response.

AG Rejects Legislature's Effort re Pay Cut

The Los Angeles Times reports here and here. The end result: lawmakers will have their salaries cut by $20,917 annually while California's 12 top state officials will see reductions of at least $28,644 apiece. And here is the article from the Sacramento Bee.

California Constitution Does Not Offer Broader Protection For Public Employee Speech

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States Supreme Court held that public employee speech made pursuant to an employee's official duties enjoys no First Amendment protection. In Kaye v. Board of Trustees (here), the Court of Appeal has held that public employee speech enjoys no broader protection under the Free Speech Clauses of the California Constitution. The court held that neither the language nor the history of the California Constitution supports a broader interpretation, nor did the U.S. Supreme Court's decision in Garcetti diminish previously-granted rights or engender a firestorm of judicial and academic criticism. Moreover, the California courts have routinely followed federal decisions when it comes to public employee speech rights.

This decision raises an important issue that the California Supreme Court might well review. However, one issue is that Kaye is representing himself, which could make the Court reluctant to intervene. And it doesn't look like there were any amici in the Court of Appeal. Where are the ACLU and the public employee unions?

Legislature's Attempt To Amend Prop. 36 Held Invalid

Proposition 36, enacted in 2000, requires treatment rather than incarceration for certain drug possession offenses. It also provides that the measure can be amended by the Legislature, but only by a two-thirds vote and only if the amendment is "to further the act" and is "consistent with its purposes. (Disclosure: I helped draft Prop. 36.) In Gardner v. Schwarzenegger (here), the Court of Appeal held that SB 1137 was an invalid amendment to Prop. 36. As the court explained, the provisions of the bill "permit incarceration of defendants who violate probation in circumstances where incarceration is prohibited by Proposition 36, and narrow eligibility for Proposition 36 diversion." The court had no difficulty finding this irreconcilable with the pro-treatment, anti-incarceration purposes of the initiative.

One interesting provision of SB 1137 is that it provided that the entire bill would be submitted to the electorate if any of its provisions were held invalid. (The Legislative Counsel had opined that the bill was an improper amendment to Proposition 36.) The court held this provision unconstitutional, too, as an invalid referendum of an already-enacted statute. Nor could this provision be upheld under the constitutional provision permitting the Legislature to put amendments to initiatives on the ballot, because the statute had already taken effect (although it was immediately enjoined).

This decision seems clearly right. I see no reason why it should be reviewed by the California Supreme Court.

The Claremont Institute On The Con-Con

Patrick Collins of the Claremont Institute has written this interesting op-ed on the con-con. His message: the con-con is unlikely to paper over deep divisions over the reasons for California's ongoing budget problems and the proposed solutions. Hard to disagree with that. And a new poll, reported here, finds voters skeptical over the usual liberal solutions to the budget mess.

Who Has Authority Over Legislative Pay And Perks?

The Los Angeles Times reports here on an impending controversy between the Citizens Compensation Commission and the Legislature. The Attorney General has been asked to weigh in. Here is an article on the same subject from the Sacramento Bee.

Legal Questions on the Con-Con

Professor Karl Mannheim of Loyola and two of his colleagues raise some interesting issues on the con-con initiatives in this op-ed from the Los Angeles Times. Among them: whether the measure's limits on the con-con's scope are constitutional and whether permitting the voters to call a convention is a "revision." I think the answer to the first question is "yes" and the answer to the second is "no."

Judgment Awarding Too Much Post-Judgment Interest Against State Is Void

In 311 South Spring Street Co. v. Department of General Services (here), a judgment was awarded against the state carrying post-judgment interest at 10%. The state raised no issue concerning the interest in the first appeal. Then, on remand, the state woke up and contended that the permissible rate of post-judgment interest was only 7%. The court held that the state was right and that the previously-appealed and final judgment imposing the higher interest rate was void and could be collaterally attacked at any time.

Court Construes Proposition 60

In Wunderlich v County of Santa Cruz (here), the court asked and answered the following question: "When an applicant for Proposition 60 tax relief builds a new residence on land purchased years earlier, is the value of the replacement dwelling calculated using the land’s current value (its fair market value when construction is complete) or the land’s historic value (its base year value under Proposition 13)? We conclude that the land must be valued currently, as of the date that construction of the structure is completed." While there was both a separate concurring and a dissenting opinion, the case involves a fairly narrow issue of property tax law. So it may be an unlikely candidate for Supreme Court review.

Will A Criminal Justice Initiative Ever Fail To Satisfy The Single-Subject Rule?

Probably not, under Manduley v. Superior Court, 27 Cal. 4th 537 (2002), which upheld the constitutionality of Prop. 21. (I filed an amicus brief on behalf of the ACLU in Manduley.) It certainly won't be Proposition 83, which was upheld against a single-subject challenge in People v. Rotroff (here). Indeed, the appellant conceded that all the provisions of the measure "relate broadly to sex offenses." The court had little difficulty finding no constitutional violation.

Court Upholds Constitutionality of Prop. 63

In Jensen v. Franchise Tax Board (here), the Court of Appeal upheld the constitutionality of Proposition 63, a statutory initiative passed in 2004 that imposes a tax on incomes over $1 million to pay for expanding mental health services. The court held, not surprisingly, that "[a]n income tax may be rationally based on a taxpayer’s income level and ability to pay, and there is no need to show that a particular taxpayer personally benefits from a tax assessed for the public good." The court also held, again unsurprisingly, that "[t]axpayers earning more than $1 million annually do not comprise a 'suspect class' requiring a strict scrutiny constitutional analysis."

Part of Prop. 63 requires the State to maintain funding for mental health services at 2003 levels. The plaintiffs contended that this required the measure to be enacted as a constitutional amendment, not a statutory initiative. But the Court rejected the argument, stating that the funding requirements in Prop. 63 were not "cast in stone," as the plaintiffs contended. Because Prop. 63 can be amended by a two-thirds vote of the Legislature to further its purposes, it did not put the Legislature in an unconstitutional strait-jacket: "[i]f the mental health services funding requirements prove too onerous, the electorate or the Legislature may vote to diminish them in the future."

The Battle Over The Con-Con Starts

Here is an editorial from the Orange County Register attacking the con-con as a "sneaky" way to amend Prop. 13. It's right in one respect: there are no painless, bipartisan ways to solve California's budget crisis or its structural problems of governance.

Con-Con Measures Submitted to Attorney General

Here they are! The first (here) gives the voters power to call a constitutional convention; the second (here) actually calls one. More analysis to follow. Here is an editorial from the Los Angeles Times on the filing, and here is the news story from the Times on the filing. More analysis to follow.

The Chief Justice on California's Government

It's not just you or me calling our state government "dysfunctional." it's our Chief Justice. Here's the Los Angeles Times article.

Constitutional Conventions in New York and California

Professor Thad Kousser has this interesting article, from the Los Angeles Times, comparing New York's experience with constitutional conventions to that of California. It seems some people in New York actually like the most controversial features of California's government: limits on raising taxes, the initiative, etc.

More on the Part-Time Legislature

Should California be more like Texas? That's one of the questions explored in this Sacramento Bee article on the part-time Legislature initiative. It turns out, by the way, that the per capita amount Texans spend on their legislature is more than in California, even though it meets only every other year.

State and Local Residency Requirements

Here is an interesting article from the Los Angeles Times concerning an investigation of Sen Roderick Wright and the interplay of state and local residency requirements for public office.

Privacy Interest Doesn't Trump Disclosure of Medical Records

In Manela v. Superior Court (here), the Court of Appeal has held that the State's interest in protecting the children of divorcing parents trumps the privacy interest of a father in his own, non-privileged medical records. In this divorce proceeding, the wife contended that the husband suffered from seizures that limited his ability to have custody of their child. She sought her ex's medical records from two doctors. The court granted discovery as to one doctor, because the husband had been examined by the doctor in the wife's presence, and had therefore waived the doctor-patient privilege, but denied discovery as to the other doctor. Then the Court held that although the husband had a protectible privacy interest in the medical records that were no longer privileged, that interest was outweighed by the state's interest in protecting the child in determining custody

Con-Con Backers Delay Initiatives

So says this report from the Sacramento Bee.

More Briefs in Line Item Veto Case

Here are more briefs in the line item veto case: the petition in intervention filed by the legislative intervenors (here) and the amicus brief filed by Children Now(here).

Court Issues OSC in Line-Item Veto Case

The Court of Appeal in San Francisco has issued an order to show cause in the line item veto case, setting a briefing schedule and stating that the case will be set for oral argument. Here is a link to the docket, which contains the text of the order. Here is a link to the AG's opposition to the petition and here is a link to the supporting request for judicial notice.

Tax Like Libertarians, Spend Like Socialists

That's the message of this article from the Sacramento Bee describing the effects of ballot box budgeting. Nothing new, but a useful summary. Meanwhile this article from the Bee catalogs various proposed solutions to California's recurrent fiscal woes, and this article, also from the Bee, focuses on the two-thirds requirement to adopt a budget.

No Procedural Due Process For Disappointed Landowner

In Las Lomas Land Company v. City of Los Angeles (here), a city decided not to proceed with a project before completing environmental review. The developer sued, contending (among other things) that the city had violated its right to procedural due process under the California Constitution. The court rejected the claim. To state a claim for a procedural due process violation under the California Constitution, the plaintiff must allege the deprivation of a property interest or benefit that is conferred by statute. (in this the state clause is broader than the federal clause, which is limited to liberty and property interests.) There was no such statutory benefit in this case because the landowner had no statutory right to have the city continue to conduct environmental review of a project that it no longer wanted to complete.

Opposition to Part-Time Legislature Initiative

The same populist backlash that brought us term limits now want to give California a part-time Legislature. But an opposition group is forming, says the Sacramento Bee (here). To improve the measure's chances, the initiative now includes an always-popular legislative pay cut. It probably passes the single-subject rule, but just makes a bad idea worse.

Sweeping Tax Changes?

The Sacramento Bee reports here on the "Commission on the 21st Century Economy," another attempt to escape the messiness and difficulty of political change. The majority seems willing to sacrifice tax progressivity in exchange for decreasing volatility. No mention in the article of a "split roll" that would eliminate Prop. 13's benefits for commercial property. Here is the corresponding report from the Los Angeles Times.

Little Support For "Major" Constitutional Changes

That's what the PPIC reports, according to this story from the Los Angeles Times. There's more support for lowering the number of legislative votes necessary to pass a budget and for the creation of a property tax "split roll." Here is a link to the PPIC report itself.

HJTA Seeks To Change Assessment Ballot Procedures

Here is a link to an article by the Howard Jarvis Taxpayers Association on SB 321, a bill it has sponsored to "increase transparency" in assessment elections. It has been approved by the Legislature. Here is a link to the bill.

Another Los Angeles Times Article On The Con-Con

This one (here) focuses on Repair California. The convention process is long and complicated. What else is new?

Insurance Commissioner Sues To Halt Sale Of SCIF Assets

One of the ways in which the State is attempting to raise funds for this year's budget is the sale or other disposition of assets belonging to the State Compensation Insurance Fund (SCIF), the workers' compensation insurer of last resort in California. Believing that these assets may only be used for purposes related to workers' compensation, Insurance Commissioner Steve Poizner has filed a lawsuit to stop the sale or other disposition of SCIF assets. A copy of the Petition/Complaint is here. The principal thrust of the complaint is that the sale violates Article XIV, Section 4 of the California Constitution, which requires the Legislature to establish a "complete system of workers' compensation. The Complaint also alleges a violation of Article II, Section 10(c). Howard Rice is representing the Commissioner, along with Adam Cole, Chief Counsel for the Department of Insurance (DOI), and several other lawyers from the DOI.
ps. Here is an article on the lawsuit, from last Friday's Los Angeles Times.

Right To A Jury In Tax Refund Actions

In Franchise Tax Board v. Superior Court (here), the Court of Appeal held that a taxpayer in a tax refund action has the right to a jury trial. Under the California Constitution, whether a party in a particular action has a right to a jury depends on whether an anologous cause action would have cognizable in the common law courts in 1850, when the first California Constitution was adopted. Because taxpayers could sue tax collectors for a refund at common law before 1850, and because the relief sought is monetary rather than equitable, the right to a jury trial attaches to the modern day statutory tax refund action.

MICRA and Mortality

The malpractice reform statute, MICRA, generally provides for the enforceability of agreements to arbitrate medical malpractice claims, provided that the patient has a thirty-day period to rescind. But what happens if the patient dies allegedly due to the physician's malpractice before the 30-day period expires? In Rodriguez v. Superior Court (here), the court held that the constitutional policy that jury trial waivers be strictly construed, enunciated in Grafton Partners v. Superior Court, trumped the statutory policy in favor of arbitrating medical malpractice claims.

Another Cell Phone Plaintiff Bites Tne Dust

Weren't you irritated when you bought a fancy new cell phone free, or at a discount, because you signed up for a two-year plan, and then discovered that you were paying sales tax figured on the undiscounted sales price that you didn't pay? Me too. But it's all perfectly legal, according to a regulation put out by the Board of Equalization. And if you file a lawsuit claiming that the carrier didn't give you proper notice, you hit the bar of Article XIII, Section 32, which prohibits the issuance of injunctions against tax collection. That's what happened to the plaintiff in Yabsley v. Cingular Wireless (here). That's true even for a cause of action against the cell phone company based on the company's failure to disclose how much the tax is.

Does The MMPA Amend The CUA?

No, says the Court of Appeal in People v. Hochanadel (here). The "CUA" is another term for Prop. 215, the medical marijuana initiative. The "MMPA" is the "Medical Marijuana Program Act." Under Article II, Section 10(c) a statutory initiative can only be amended by another initiative, unless the initiative provides otherwise. Prop. 215 does not permit legislative amendment, so the Legislature can't amend it. In this case, the People contended that the MMPA, which sets up rules for marijuana cooperatives, was an unconstitutional amendment to Prop. 215. But the court rejected the argument, holding that the statute merely implemented the initiative, by identifying groups that could lawfully provide marijuana to medical users protected by Prop. 215, without diminishing the rights granted by the measure.

A Charge To Collect A Tax Is, Guess What? (A Tax)

Ever since the enactment of Prop. 13 there have been dozens of cases demarcating the boundary line between taxes, which at the local level now require voter approval, and fees, which sometimes do not require such approval (even under Prop. 218). The latest battle in this saga is Weisblat v. City of San Diego (here). There the City tried to impose a fee to cover the costs of imposing a tax on renters of real property. Not surprisingly, the court held that the charge was a tax, not a fee, since it did not cover the cost of regulation or the cost of providing a service to these property owners. Accordingly, the case largely restates settled law, and is far from the sweeping victory that it has been portrayed as by anti-tax groups. In fact, the only novel thing about the case is its holding that the tax was a "general tax" under Prop. 218, rather than a "special tax," even though it was intended to cover specific costs. That holding should give local government a chance to levy more general taxes that require only a majority vote.

Is The Con-Con Like "Magic Beans"?

That's what the Howard Jarvis Taxpayers Association thinks (here). You can see why they might be leery of the idea--some of their sacred cows are in the line of fire. But I didn't remember what "Magic Beans" were. Perhaps I've forgotten my Grimm's Fairy Tales.

Does The Constitution Prohibit The Legislature From Drafting Ballot Arguments?

That;s what the Howard Jarvis Taxpayers Association claims. The case is now pending in the Third Appellate District. Here is the HJTA's Opening Brief; here is the Legislature's Respondent's Brief; and here is the HJTA's Reply. Thanks, Tim Bittle, for sending these along.

The Convention Requires Compromise

So says the Los Angeles Times (here). But what kind of compromise? Ending "fees that are actually taxes"? That's what's "buzzing" in Sacramento, according to this report. RIP, Sinclair Paint.

The Con-Con Makes The New Yorker

Here is Hendrik Hertzberg's "Talk of the Town" piece about our ungovernable state and the proposals for a constitutional convention.

Court of Appeal Issues Palma Notice in Line Item Veto Case

The Court of Appeal has issued a "Palma notice" in the line item veto case (here). This is a formal indication that the court (but need not) issue a formal ruling in the case.

The Governor Meets With Proponents Of A Part-Time Legislature

The San Francisco Chronicle reports here. Here is a link to the text of the initiative.

The Los Angeles Times On Reform Proposals

This article from the Los Angeles Times summarizes the competing proposals to reform California government. It also mentions a circulating initiative to return California to a part-time Legislature. Would the cure be worse than the disease?

California Forward's Proposals To Revise The California Constitution

Here's a different approach than the con-con, a set of proposals from a business-backed group called California Forward to revise the California Constitution. The proposals are discussed in this article from the Sacramento Bee. Other than a requirement that new funding sources be identified for new programs, and perhaps a two-year budget cycle, there's not much here to warm the hearts of Republicans or conservatives. So this proposed revision probably wouldn't get the two-thirds vote of the Legislature necessary to put it on the ballot. And you couldn't put it on the ballot by initiative, because (a) a measure with all these changes would probably fall afoul of the single subject rule; and (b) it would be a revision of the constitution, which you can't do by initiative. So it's hard to see where this is headed. If they can't get the Legislature to pass it they would have to split it up into several measures, which is expensive and changes the political dynamic considerably.

Steinberg Files Line-Item Veto Lawsuit

Here is the story from the Sacramento Bee. Here is the San Francisco Chronicle story, by Bob Egelko, which adds that the case has been assigned to Judge Peter Busch, a former partner of mine who is now one of the two law and motion judges in the San Francisco Superior Court. Here is a copy of the petition itself (thanks to Robin Johansen, petitioner's counsel, for sending it along).
ps. Here is an article analyzing the politics of the lawsuit.
pps. Another lawsuit has been filed challenging the line item vetoes in the Court of Appeal in San Francisco. Here is the petition and here are the exhibits; and here is a link to the docket for that case.

The Administration Defends The Line Item Vetoes

The Los Angeles Times has posted this article by Andrea Hoch, the Governor's Legal Affairs Director, and Jennifer Rockwell, the chief counsel for DOF. And, more generally, the Times also reports on the recent rise in budget-related litigation here.

Steinberg to Sue Governor Over Line-Item Vetoes

So reports the Sacramento Bee in this article. He'll be represented by the Remcho, Johansen firm. The Los Angeles Times covers the story here.

A Skeptical Look at the Constitutional Convention

From the Orange County Register (here).

Supreme Court Slightly Narrows Workplace Privacy Protection

In Hernandez v. Hillsides, Inc. (here), the Supreme Court has held that an employer did not violates its employees' constitutional rights to privacy by surreptitiously monitoring their office for pornographic computer use during non-work hours. While the Court held that the employees had privacy interests in their workplaces (which may be the most important part of the holding), it also held that the intrusion was not highly offensive and significantly serious so as to violate those interests. The court placed particular emphasis on the fact that the employees were not monitored during work hours (indeed, no one was actually videotaped) and the employer's interest as a residential facility for neglected and abused children to prevent such computer use.

Water Charges Are Fees Not Assessments

In Paland v. Brooktrails Township (here), the Court of Appeal has clarified the scope of Proposition 218 as applied to water charges. The plaintiff claimed that a minimum monthly base rate imposed by a special district for water service that was available but not used constituted a "fee" that is required to comply with the requirements of Article XIII D. Section 6, rather than an "assessment" required to comply with Article XIII D, Section 4. The difference is important because, among other things, an assessment requires a vote of the assessees, while a fee (for water service) does not. Here's the holding: "[W]e conclude the water and sewer base rates imposed on parcels with water or sewer connections regardless of whether they are active or inactive, and whether or not the property owner uses the services, is a fee subject to the provisions of article XIII D, section 6, not an assessment subject to the requirements of article XIII D, section 4." Ungrammatical, but correct, in light of prior Supreme Court authority holding that water charges are fees.

Are The Line Item Vetoes Legal?

Here is an interesting post that discusses the issue, with links to conflicting opinions from the Legislative Counsel and the Department of Finance.
ps. Here is an editorial from the Los Angeles Times on the same subject; here is an article from the same paper; here is an article from the San Francisco Chronicle and here is an article from the Sacramento Bee. None of the articles really add much, although one indicates that legislators may file briefs if someone else initiates litigation.

Is Bigger Better?

Ryan Connerty suggests that a bigger Legislature means more democracy in this op-ed piece from the Los Angeles Times. Would it cost too much? Cut the legislators' pay, he says. (Coonerty teaches constitutional law at UC Santa Cruz.)

The Two Different Two-Thirds Requirements

In this column, Dan Walters distinguishes between the two-thirds requirements for passing a budget and increasing taxes (for purposes of increasing revenue). He says the former stands a reasonable chance of being repealed, while the latter is politically untouchable.

The Los Angeles Times On The State's Business Climate

How does California rank as a place to do business? Here is an interesting article on this subject from the Los Angeles Times. The real culprits: traffic gridlock and the lack of an educated workforce. And George Skelton picks the winners and losers in the budget battles, both short-term and long-term, here.

Dan Walters on Young v. Schmidt

He's pessimistic about the lawsuit's chances (here). The case is still pending before the California Supreme Court. (Full disclosure: I will be representing the Respondents in the case.) And here is Walters' take on the deeper problems causing the budget crisis, and suggesting that a constitutional convention may be the fix.

The Los Angeles Times On The Budget Fix

Here is the editorial from today's Los Angeles Times on the State's budget fix and the need for a constitutional convention.

Harold Meyerson on the California Constitution

Harold Meyerson of the Washington Post pens this op-ed piece for the Los Angeles Times attacking the two-thirds requirements to pass a budget and raise revenue through tax increases.

Court Interprets "Full Text" Rule

Government Code Section 9238 requires that a referendum petition contain the "full text" of the measure being challenged. This seemingly straightforward command has given rise to a surprising amount of litigation. The latest case is Lin v. City of Pleasanton (here). This decision holds that, at most, a referendum petition must include the ordinance being challenged and any documents attached to the ordinance or incorporated by reference. Indeed, the court left open the possibility in footnote 4, citing Defend Bayview Hunters Point Committee v. City and County of San Francisco, 167 Cal. App. 4th 846 (2008), that the full text requirement could be satisfied in some situations even if not every document incorporated or attached to the challenged measure was included. This case continues the reasonable construction of these textual requirements begun in We Care -- Santa Paula v. Herrera, 139 Cal. App. 4th 387 (2006), which followed a string of more exacting decisions. It is sound and there is no reason why the Supreme Court should grant review.

HJTA Moves To Intervene in Two-Thirds Vote Case

The Howard Jarvis Taxpayers Association has moved to intervene in Young v. Schmidt, the case challenging the two-thirds rules for passing a budget and raising taxes to increase revenue. A copy of the motion is here. According to the court's docket, the Petitioner will oppose the motion.

Ideology Divides Tax Panel

A foretaste of what could happen to a constitutional convention. Dan Walters reports in the Sacramento Bee (here).

Lawsuit Filed Challenging Two-Thirds Vote Requirements

A petition for writ of mandate has been filed in the California Supreme Court attacking the constitutionality of the California Constitution's two-thirds vote requirements for passing a budget and raising taxes. The petitioner's theory is that these enactments constituted revisions of the California Constitution, not amendments. The petition/memo is here and the accompanying motion for judicial notice is here. The Supreme Court docket for the case is here. The docket notes that the Court has retained the case for consideration.

ps. Here is an article by Dan Walters about the lawsuit.

Pleadings in the Charter City/Prevailing Wage Case

Here are the Supreme Court filed so far in City if Vista, the case raising the issue of whether the state's prevailing wage statute applies to charter cities. The petition for review is here; the answer to the petition is here; the amicus letter by the Attorney General in support of review is here; and here is the reply to the answer. This is a good candidate for review.

Dan Walters on the Constitutional Convention

Dan Walters reports here that the same political battles that have led to California's budget crisis have infected the drive for a constitutional convention. This is not a big surprise, as I pointed out several months ago (here), and others have said the same, constitutional law is merely politics by other means. Changing the constitution, of course, is even more so.

Limits on Transportation Funding Upheld

In Shaw v. People ex rel. Chiang (here), the Court of Appeal invalidated several legislative appropriations that it said violated restrictions on the permissible uses of transportation funding contained in a series of initiatives and legislative constitutional amendments. While much of the case involves the precise wording of the various provisions at issue, from a constitutional perspective there are two interesting holdings.

First, the court considered the interplay between Article IV, Section 9, which provides that a "section of a statute may not be amended unless the section is re-enacted as amended," and Article II, Section 10(c), which says that an initiative can't be amended, except by another initiative, unless the initiative itself permits amendments. Here's how the issue arose. Revenue and Taxation Code Section 7102 is a statute that distributes the state's share of the sales and use tax. An initiative added a subdivision to the statute that limited the permissible uses of a portion of sales tax revenue derived from the sale of gasoline. However, because of Article IV. Section 9, the initiative had to reenact the entire statute. That wouldn't have mattered much, except that the initiative also provided that future amendments to the statute (not just the subdivision of the statute added by the initiative) could be enacted by the Legislature, but only if the amendment was consistent with, and furthered the purpose of, the measure.

The trial court held that amendments to the entire statute had to comply with this requirement. However, it also held that, since the purpose of the entire statute was to distribute sales tax revenue, any amendment that did that furthered the statute's purpose and was thus permissible. The Court of Appeal disagreed, rightly holding that this interpretation would make any amendment of the statute permissible, thus essentially eliminating the consistency requirement. Instead, the court held that any amendment to the statute as a whole had to be consistent with, and further, the purpose of the initiative, which was to provide a dedicated source of revenue for mass transportation.

That's fine as far as it goes, but it leaves an important question hanging. Suppose the Legislature wanted to amend a subdivision of the statute that had nothing to do with transportation funding. Under the decision, the amendment would be invalid, unless it was approved by the electorate, because by hypothesis it wouldn't further the initiative's purpose. That seems like quite a stretch, particularly since the court acknowledged that the initiative's failure to limit the amendment-restricting language to the particular subdivision of the statute, rather than the statute as a whole, was probably an oversight.

The second aspect of the court's decision that is interesting from a constitutional perspective is its treatment of initiative language restricting legislative budget-making. In People's Advocate v. Superior Court, the same court had invalidated a provision of an initiative statute that purported to limit future Budget Act appropriations for the Legislature. (Jerry Falk and I represented the Assembly in that case.) But the court also said that an initiative could appropriate money without posing a constitutional problem, if the initiative provided for a continuing appropriation. Since the initiative involved in the Chiang case did that, its limitation on the use of pre-existing funds was not invalid under People's Advocate.

This decision is not good news for the Legislature, particularly given the state's budget crisis. But it won't become effective until the Supreme Court either decides the case or denies review. Stay tuned.

Local Government's Allocation Of Regional Housing Needs Not Subject To Judicial Review

The Government Code provides a procedure by which each locality is assigned its share of meeting projected Regional Housing needs. Each jurisdiction's allocation in turn is used to formulate the "housing element" of its general plan. The allocation is made pursuant to a complex statutory process involving both the local association of governments and the state Housing and Community Development Department (which hears appeals from decisions made by the local association of governments). A city dissatisfied with the results of this process filed a petition for writ of mandate to overturn the local association's allocation. The trial court held that the allocation was not subject to judicial review and the Court of Appeal affirmed (here), in City of Irvine v . Souther California Association of Governments.

The court acknowledged that nothing in the relevant statutes expressly precludes judicial review and that the constitutional jurisdiction of the California courts to issue writs of mandate is not to be lightly cast aside in the absence of clear indications of legislative intent. Nevertheless, the court found "a clear intent on the part of the Legislature to render this process immune from judicial intervention." The court reached this conclusion because decreasing the plaintiff city's allocation of housing need would increase the burden on other jurisdictions within the region, thus frustrating the statutory mandate that each jurisdiction';s housing element reflect its allocation of housing needs.

This decision reaches the right result, notwithstanding the presumptions in favor of judicial review. Permitting judicial review of these administrative decisions seems incompatible with the statutory scheme.

Criminal Restitution and Civil Judgments

In Vigilant Insurance Co. v. Chiu (here), the plaintiff insured a company against criminal activity. The defendant, a company employee, stole money from the insured. The insurer paid the insured, receiving an assignment of rights in return, and sued the defendant, obtaining a judgment. The defendant appealed the judgment on the ground that he had already been subject to a restitution order in the criminal proceeding for the same loss.

The court held that the restitution order did not preclude a civil judgment. Restitution judgments are limited to economic losses and don't bear interest; in contrast, civil judgments include non-economic losses and bear interest. Thus, a restitution order does not duplicate a civil judgment. However, pursuant to Penal Code Section 1204(j), money actually paid pursuant to a restitution order shall be credited against a civil judgment arising out of the same wrong. Similarly, money other than interest paid pursuant to a civil judgment shall be credited against a restitution order.

Court Clarifies Criminal Restitution

Both the California Constitution (Art. I, section 28(b)) and implementing provisions of the Penal Code provide for restitution to victims of criminal activity. In People v. Millard (here), the Court orf Appeal resolved a series of issues relating to restitution in the context of a accident in which the defendant, who was driving a Ford Explorer while "under the influence," collided with and injured the driver of a motorcycle. The court held (a) the trial court did not abuse its discretion in awarding the victim the amount his insurance company paid to his doctors, as opposed to the amount that the doctors billed the victim; (b) the amount of attorney's fees incurred by the victim that is awardable under the restitution statute must be calculated according to the "lodestar method" used for calculating a fee award in civil rights cases; (c) although restitution is limited to economic losses, the victim's fees need not be automatically reduced even if the fee was incurred to obtain a recovery for both economic and non-economic losses, if there is no reasonable way of dividing the attorney's time; (d) a restitution order does not require either a jury trial or proof beyond a reasonable doubt; and (e) the doctrine of comparative fault may be used to reduce a criminal defendant's restitution obligation to the extent the victim's negligence contributed to his injuries.

This is an interesting and scholarly decision. The comparative fault issue is novel and may be worthy of the California Supreme Court's attention, particularly if the AG can portray it as a limitation on victim's rights in favor of criminal defendants.

No Right Of Access To School Teacher Mailboxes

In San Leandro Teachers' Ass'n v. Governing Board (here), the California Supreme Court unanimously held that a school district may constitutionally exclude from the district's internal mailbox system communications from a teachers union supporting specific candidates in a school board election. The union acknowledged that it had no right of access to the mailboxes under the First Amendment, in light of Perry Education Association v. Perry Local Educators Association, 460 U.S. 37 (1983), one of the United States Supreme Court's earliest "nonpublic forum" cases. However. it urged that a different result should follow under the California Constitution's free speech clause, Article I, Section 2.

The Court disagreed. The Court did not make clear whether the three-tiered approach to public forum cases adopted by the United States Supreme Court is part of California law. Nor did it expressly disavow the "basic incompatibility" test adopted in U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory, 154 Cal.App.3d 1157 (1984). Instead, it simply held that "this prohibition on the use of government resources for political campaigning is a means of promoting an important government interest, i.e., maintaining the integrity of the electoral process by neutralizing any advantage that those with special access to government resources might possess."

As this quotation illustrates, the Court was obviously influenced by its prior decisions in Stanson v. Mott, 17 Cal.3d 206 (1976), and Vargas v. City of Salinas, 46 Cal.4th 1 (2009), which at least in part preclude the use of public resources to influence political campaigns. Yet the court also held that the school district's regulation was not statutorily compelled. It will be interesting to see what happens if a school district permits such communications and the union's disfavored candidate goes to court. The Vargas decision is discussed here.)

26-Year Delay In Prosecution Violates Defendant's Right To Speedy Trial

In 1981, Mirenda was charged with attempted murder. In 1982, he was arrested in Pennsylvania. Although he waived extradition, the DA declined to prosecute because he couldn't locate the victim. In 2007, defendant returned to California and notified the authorities. The victim having been located, the DA tried to prosecute. The trial court held that the defendant's speedy trial right had been violated and--not surprisingly--the Court of Appeal affirmed, in People v. Mirenda (here). There was no justification for the delay and the defendant made a reasonable showing of prejudice.

Prop. 218 Claims Not Subject To Validation Statutes

In Bonander v. Town of Tiburon (here), the Supreme Court has held that claims that a utility undergrounding assessment is invalid under Prop. 218 don't need to comply with the strict requirements of the validation statute. The case turns primarily on statutory interpretation, but the result seems absolutely right. The validation statutes are a trap for the unwary and shouldn't be applied unless the governing law is absolutely clear, which it was not in this case.

78 Years To Life Not Cruel Or Unusual

The Eighth Amendment and its California counterpart have gotten lots of judicial attention lately, although most claims have been unsuccessful. In People v. Haller (here), a sentence of 78 years to life was held not to violate the federal or state constitutions. The defendant was found guilty of a number of felonies involving threats to his ex-wife and her current husband and assault with a deadly weapon on the husband, and also had two prior serious felonies. Given the defendant's age, the sentence amounted to life without possibility of parole. Nevertheless, the court upheld the sentence due to the seriousness of the offenses and the defendant's prior record.

The decision contains language that minimizes the interjurisdictional component of the test for determining whether a California sentence is cruel or unusual: "In any event, the fact that defendant’s current offenses might not qualify for recidivist sentencing in other states does not render the California punishment cruel or unusual. “That California’s punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require ‘conforming our Penal Code to the “majority rule” or the least common denominator of penalties nationwide.’” (Martinez, supra, 71 Cal.App.4th at p. 1516; accord, Sullivan, supra, 151 Cal.App.4th at p. 573.)

Thus, the decision contains little that is new, and continues the erosion of federal or state constitutional limits on California's draconian sentencing laws. Haller is no doubt a dangerous felon, but wouldn't 50 years to life be enough? Do we really want a prison system full of elderly and sick inmates?

County Must Pay for Representative's Visits

In a decision that illustrates the poverty (in more senses than one) of our social safety net, the Court of Appeal has held that a trial court has the power to order a county human services agency that places a child in an out-of-county group home to pay for travel expenses for quarterly visits by the child's "educational representative." The San Diego County Health and Human Services Agency placed Samuel G. in a group home in Redding, California. The child's educational representative felt that visiting him quarterly would be beneficial and requested funds from the County to do so. (By this time the parents were out of the picture.) The County refused, saying that the financial responsibility was that of the representative's employer. The court nevertheless ordered the County to pay.

The Court of Appeal affirmed (here). Although a court can't compel an appropriation, it can compel an expenditure if appropriated funds are available. The court also held that the expenditure was not an improper gift of public funds, since it served a public purpose.

This decision breaks no new ground, and is therefore an unlikely candidate for Supreme Court review. Maybe the County will decide not to throw good money after bad and forego the effort.

No Constitutionally Mandated Pay Increase For State Attorneys

Article VII, Section 1(b) enshrines the "merit principle" as the sole criterion for appointment and promotion in the state civil service. While this article has been construed broadly to prohibit "contracting out," it does not enshrine the principle of "like pay for like work." Accordingly, the Court of Appeal in California Attorneys v. Schwarzenegger (here) has dismissed a claim by the union representing lawyers in the Attorney General's office that their low salaries create a constitutional violation. Nor could the Attorney General prove that the low salaries of the lawyers in his office made it impossible for him to fulfill his constitutional duties. In a snarky concurring opinion, Justice Scotland pointed out the irony that the present state statute authorizing collective bargaining over salaries for state employees was promoted by then-Governor Brown, who now as Attorney General finds himself the victim of changes that he loudly championed as Governor.

The Court's ruling was right, and dictated by the result in Pacific Legal Foundation v. Brown, 29 Cal. 3d 168 (1981), where the court rejected the claim that collective bargaining and the merit principle were incompatible. (Jerry Falk and I represented the State Personnel Board in that case.)

Class Claims For Utility Tax Refunds?

n Woosley v. State of California, 3 Cal. 4th 758 (1992), the Supreme Court held that, in view of the strong constitutional policy (expressed in Article XIII, Section 32) against granting injunctive relief to restrain the collection of taxes, a class claim to secure the refund of state taxes is impermissible unless expressly authorized by the Legislature. In Ardon v. City of Los Angeles (here), the Court of Appeal extended Woosley to a suit for refund of a local tax. Although the same court had previously reached the opposite result in County of Los Angeles v. Duperior Court, 159 Cal. App. 4th 353 (2008), this time the majority held that even though Article XIII, Section 32 applies of it own force only to state taxes, the policy it enunciates is broad enough to cover local taxes as well.

This seems like a strong candidate for Supreme Court review. The Courts of Appeal (indeed, even the same court) is split, and the issue is important. Stay tuned.

Some Thoughts On Strauss v. Horton

Here are my thoughts about the California Supreme Court's decision in the Prop. 8 case. Needless to say, I speak only for myself, and not for my partners, past or present clients, or anyone else.

This was not a case about same-sex marriage. Instead, the Court went out of its way to reaffirm that the doctrinal holdings of the Marriage Cases remain intact. Thus, Strauss v. Horton leaves unchanged the rule set forth in that case that discrimination on the basis of sexual orientation must satisfy "strict scrutiny."

Instead, the decision is about how, and under what circumstances, the California Constitution can be changed. Here the plaintiffs were facing an uphill battle. Given prior decisions upholding constitutional amendments that limited rights in a number of respects (e.g., reinstating the death penalty, eliminating the state's version of the exclusionary rule, eliminating affirmative action), it was pretty clear before Strauss v. Horton that the constitution did not prohibit such initiatives. Thus, the Court's reaffirmation of the principle that limits constitutional revisions to changes in the constitutional structure or plan was solidly grounded in existing law. In contrast, there is very little support, other than snippets from a few decisions, for the converse idea: that rights-limiting amendments are impermissible.

There were, moreover, three quite practical reasons for finding the opposing view unappealing. First, it's difficult to see how rights that had only been a part of the California Constitution for less than a year were so fundamental a part of the state constitution that they couldn't be changed by the electorate. Second, a rule that made judicial decisions that expand rights effectively unchangeable by the electorate might make courts much more reluctant to read new rights into the California Constitution. THird, it's difficult to draw principled distinctions among rights to demarcate those rights that can be changed by an amendment and those rights that could only be limited by a revision.

All in all, the majority opinion is careful, scholarly and respectful of the opposing interests and views at stake. The Court has every reason to feel that it has undertaken an important job and done it well.

The end result is to return the issue of same-sex marriage to the political process. This is not a bad thing. Whatever one might think of the initiative process, same-sex marriage is perfectly suited for direct democracy. Unlike many other initiatives, the issue is simple and understandable.

No one who can read the political leaves doubts that same-sex marriage will be legal sooner or later. Its triumph is inevitable. It will be far better in the long run to achieve that victory through the ballot box than through the courts.

San Francisco Assessor Forms Committee To Take On Prop. 13

The Sacramento Bee reports here. One of their options is a "split roll," which would tax commercial and industrial property more heavily than residential property. I wrote a split roll initiative twenty years ago that just missed qualifying for the ballot. Good luck.

Chemerinsky On The Constitutional Convention

Erwin Chemerinsky in the Los Angeles Times (here) is skeptical about whether a convention will solve California's constitutional problems. The reason? The same politics that makes it so hard to get anything done under the present constitutional scheme. Here's the gist: "Even if there is a constitutional convention, and even if it does come up with a coherent and meaningful package of proposed changes, it's uncertain that that package would ever be adopted. There are countless controversial issues that could doom it. For example, if the revised constitution protects a right to marriage equality for gays and lesbians, a significant number of voters will oppose it on that basis alone. But if the new constitution does not protect a right to marriage equality, others will vote against it for that reason. The same impasse could arise over abortion rights, affirmative action or benefits for undocumented immigrants.

"Even if the constitutional convention were narrowly limited to issues related to the state's fiscal problems, this difficulty would not go away. For example, Proposition 13, which limits property taxes, has a greatly distorting effect on the state's tax structure, and I would certainly argue that it should be repealed or, at least, reformed. But simple politics tells us that a proposal to repeal Proposition 13 would be enormously controversial and could doom any constitutional reform. The same goes for repeal of the two-thirds requirement for passing budgets."

In other words, as I said in my own article on some related issues (here), having a convention doesn't make the politics of stalemate go away--it just transfers them to a different forum. And it wil take time, too. Better to immediately repeal the two-thirds rule for passing a budget (and for raising taxes, too).

New Federal Court Challenge To Prop. 8

Ted Olson v. Ken Starr? This should be interesting. The news story is here.

ps. Here is a link to the complaint.

Mayer On The Constitutional Convention

Here is an article I wrote for the San Francisco Daily Journal regarding the legal and political issues raised by the calls for a constitutional convention. Among other things, I question the constitutionality of AB 4, the statute currently before the Legislature that would prescribe a means of selecting (not electing) the delegates to a convention. I also other a suggestion as to how the scope of such a convention could be limited.

Reactions to The Prop. 8 Case

Rick Hasen's is here. We'll post more as articles become available. Here is the article from the San Francisco Chronicle; here is the article from the Los Angeles Times; here is the article from the Sacramento Bee; and here is the article from the New York Times.

No Surprise

Prop. 8 upheld, existing marriages valid--or so says SF Gate.

ps. Five Justices joined the majority opinion by the Chief Justice. Justice Kennard wrote a separate concurrence, but joined in the majority opinion. Justice Werdegar concurred in the result, but wrote a separate concurrence explaining her view of the revision issue. Justice Moreno dissented, expressing the view that Prop. 8 was invalid. So the vote is 6-1 on the validity of Prop. 8 and 7-0 in favor of upholding existing marriages.

The opinions total 186 pages, so they will take a while to digest. They can be found here.

Prop. 8 Decision Tomorrow

The Prop. 8 decision will be available on the Supreme Court's website (here) at 10:00 am tomorrow. The consensus prediction of the media: upholding Prop. 8 while saving the marriages performed between the Court's decision in May in the Same-Sex Marriage Cases and election day.

A Grand Constitutional Bargain?

Should federal bailout money be conditioned on a constitutional convention? That's what Joe Mathews proposes in this New York Times op-ed piece.

The Los Angeles Times Endorses The Constitutional Convention

The Los Angeles Times jumps on the bandwagon here.

We Have Met The Enemy--And It Is Us

Michael Finnegan, of the Los Angeles Times, offers this analysis. Here's the most interesting quote: "The public's contradictory impulses were laid bare by a recent Field Poll. It found that voters oppose cutbacks in 10 of 12 major categories of state spending, including the biggest, education and healthcare. Yet most voters were unwilling to have their own taxes increased, and they overwhelmingly favored keeping the two-thirds requirement for tax hikes."

Four Elections A Year?

Regularly scheduled elections, I mean. Joe Mathews has this op-ed piece in the Los Angeles Times advocating more regular elections, instead of the crazy quilt pattern we have now.

No Change, No Surprise

All the budget initiatives went down to defeat last night, except for a silly measure that ties legislative pay to budget deficits. None of the others got more than 38%. The San Francisco Chronicle reports here; the Los Angeles Times reports here; and here is the Sacramento Bee's report.

Court of Appeal Interprets Assessment Requirement

Article XIII D. Section 4(a) provides that no special assessment "shall be imposed on any parcel which exceeds the reasonable cost of the proportional special benefit conferred on that parcel." Is this proportionality requirement violated when some parcels subject to an assessment pay less than their proportional share? A majority of the Court of Appeal, Second Appellate District, Division One, says "no," but a concurring Justice isn't so sure. The case is Dahms v. Downtown Pomona Property and can be found here.

A Political Scientist Looks At The May Ballot Measures

UCSD political scientist Thad Kousser looks at the May ballot measures in this op-ed from the Los Angeles Times and finds that they embody just the sort of bipartisan compromise that voters claims they want--at least in the abstract.

LWOP For Kidnapping Cruel And Unusual

In a welcome change from recent decisions that had adopted a restrictive reading of the California Constitution's "cruel or unusual punishment" clause, the Fourth Appellate District, Division Three, has held in In re Nunez (here) than an LWOP sentence imposed on a kidnapper who was 14 at the time of the offense where the victim was not murdered amounts to cruel or unusual punishment under the California Constitution (as well as cruel and unusual punishment under the federal constitution's Eighth Amendment). The court was influenced by the fact that LWOP is not available for first degree murder, even with special circumstances, where the offender was 14 at the time of the crime, and by the fact that the sentence was apparently unique to California, the United States and the world.

New Poll On The May Election

This poll, by the PPIC, shows all the budget-related measures losing, by varying amounts.

Will Same-Sex Marriage Go Back On The Ballot?

Will recent victories in other states speed up the political timetable for another ballot measure on same-sex marriage? The Los Angeles Times reports here.

The Revelopment Case And The Budget Mess

Dan Walters of the Sacramento Bee has this column about the budget crisis, specifically referencing the Superior Court's decision in the redevelopment case discussed here previously.

ps. Here is a a link to the trial court's decision. The state is expected to appeal.

More On The May Propositions

The Sacramento Bee has this article on the May propositions--a Field Poll which shows Props. 1A through 1E losing. Dan Walters explains why here. And here is another story from the Bee sounding the same theme. And here is George Skelton's analysis, from the Los Angeles Times (I think he's the first to link this election to the Nov. 2005 election in which all the measures lost).

A Note On The Prevailing Wage Case

One of the most pernicious aspects of the majority's decision is the way it uses the exceptions to the prevailing wage law to undermine its constitutionality. Legislatures often legislate incrementally; it's characteristic of the compromises that are built into our political system, with its multiple checks and balances. And, indeed, Equal Protection analysis recognizes the legislatures can, and often should, legislate one step at a time. So the fact that the prevailing wage law doesn't apply to every construction contract, public or private, or even every public one, shouldn't be used to call it ineffective and constitutionally flawed.

Charter Cities Not Governed By Prevailing Wage Law

In State Building and Construction Trades Council v. City of Vista (here), a divided Court of Appeal has held that a state law requiring the payment of prevailing wages on public works projects does not apply to public works contracts that are financed solely from city revenues. The court based its decision on Article XI, Section 5, which gives charter cities power over "municipal affairs." However, this power does not extend to matters of "statewide concern." If a state statute addresses a matter of statewide concern, it will supersede contrary charter city laws if the state law is "both reasonably related to resolution of that concern, and narrowly tailored to limit incursion into legitimate municipal interests."

In holding that the prevailing wage law did not cover charter cities, the court majority focused on its limited scope--it does not apply to private projects and not even to all public ones--and on the cases holding that the salaries of a charter city's own employees are a municipal affair, not a matter of statewide concern. Consequently, the majority found that "the wages paid on local public works projects are not matters of sufficient extramural dimension to support legislative intervention." How a city spends its money is generally of only local concern and neither the Legislature nor the plaintiff had shown that the level of public works wages had a significant extra-territorial effect. Nor, given the number of exceptions to the prevailing wage statute, could the Legislature rely on an interest in statewide uniformity to support the statute. Finally, the plaintiff's showing that construction markets are regional was held by the majority not to support the statute in the absence of evidence that the prevailing wage law affected those markets.

Needless to say, the dissent saw the applicable legal standard and the evidence quite differently. Doctrinally, the dissent saw the statewide concern issue as focusing on the Legislature's purpose in enacting a statute, rather than the statute's effectiveness. There were three such purposes, each reflecting a statewide concern: upholding prevailing wage rates in the construction industry, ensuring quality work on public projects and promoting a quality apprenticeship program. The dissent also rejected the majority's reliance on the cases upholding a charter city's power to control the salaries of its own employees. Finally, the dissent found that the prevailing wage law was reasonably related to these purposes and did not unduly trench on local interests.

Given the importance of this issue, and the divided vote in the Court of Appeal, this case seems like a very good bet for Supreme Court review.

The Future Of Proposition 13

Dan Walters of the Sacramento Bee weighs in here on the future of Proposition 13--including an important change that would not require a constitutional amendment.

Phil Angelides Weighs In Against Prop. 1A

The 2006 Democratic candidate for Governor (and former State Treasurer) opines here (from the Los Angeles Times).

Court of Appeal Holds Interest Arbitration Statute Unconstitutional

In 2000, the Legislature passed a statute, known as SB 402, which required local governments to engage in "interest arbitration" after bargaining with local public safety unions to impasse over wages, hours and other terms and conditions of employment. ("Interest arbitration," as opposed to "grievance arbitration," is a process where an arbitrator actually determines the substance of a contract between an employer and an employee organization.) Local governments felt that this statute unconstitutionally impaired their power to set employee salaries. Eventually, after a good bit of litigation, the California Supreme Court declared SB 402 unconstitutional under two provisions of the California Constitution: Article XI, Section 1 (which gives county boards of supervisors power to set county employee salaries) and Article XI, Section 7 (which forbids the delegation of "municipal functions"). County of Riverside v. Superior Court, 30 Cal. 4th 278 (2003). (I represented the County in the case.)

In response to County of Riverside, the Legislature passed a new statute ("SB 440"). SB 440 retains interest arbitration, but provides that the arbitrator's decision can be overturned by a unanimous vote of the local governing body. The Court of Appeal, First Appellate District, Division Five, has now held the statute unconstitutional, holding that it suffers from the same constitutional defects as its predecessor. The case is County of Sonoma v. Superior Court, and is available here.

With respect to Article II, Section 1(b), the court reaffirmed the holdings in County of Riverside that that provision gives county board of supervisors exclusive power over the salaries of county employees (both Sonoma County and Riverside County are general law counties) and that the amount of these salaries (as opposed to the process by which they are set) is a matter of local, not statewide, concern. Although the statute gave a unanimous board the power to overturn an interest arbitration award, the court held that this amounted only to a veto--i.e., the board had no power to set salaries itself, but could only veto the decision made by the arbitrator. The court also held that the reference to "governing body" in Article XI, Section 1(b) meant a majority of the governing body, so that giving a single board member the power to impose an arbitrator's award violated that provision. Indeed, because the statute required a unanimous vote of all members to overturn an award, the award would become binding if a board member couldn't vote because of illness. This, the court said, was the kind of substantive interference with the board's power to set salaries that was unconstitutional. Finally, the court rejected the claim that the unanimity requirement could be severed from the rest of the statute, because it couldn't say with confidence that the Legislature would have enacted such a measure.

With respect to article XI, section 11(a), the court held (as had the court in County of Riverside), that the interest arbitration statute impermissibly delegated to a private arbitrator power over county money and the power to set county employees salaries.

It's hard to see why the California Supreme Court would take this case, even though the issue is important. The Court laid down the governing law in County of Riverside and this decision largely follows it.

Congratulations to Jeff Sloan and his firm for an outstanding victory.

Democrats Divided By Propositions

The Sacramento Bee has this article about how internecine battles over the May propositions are dividing Democrats, as they assemble for a state convention.

Toward A Constitutional Convention?

Is the push for a constitutional convention gathering momentum? The Los Angeles Times reports (here).

AG Calls Proposition 209 Unconstitutional

Bob Egelko of the San Francisco Chronicle reports here on Jerry Brown's filing in the Coral Construction case. Here is a link to the AG's brief.

Two Paths To Constitutional Reform?

The Bay Area Council's push for a constitutional convention and a more incremental approach by a foundation-sponsored group called "California Forward." Dan Walters of the Sacramento Bee reports here.

Supreme Court Clarifies Limits On Government Speech

In Vargas v. City of Salinas (here), the Supreme Court has clarified the permissible limits on government speech regarding a proposed local initiative. After voters put an initiative repealing a local utility users tax on the ballot, the City Council adopted an alternative budget showing the service cuts that would be made if the initiative passed. It also made a one-page summary of the alternative budget available in places such as public libraries and described the budget in a quarterly newsletter sent to the voters approximately a month before the election. The Supreme Court unanimously held that all these activities were permissible.

Several aspects of the decision are noteworthy. First, the court held that public agencies can file an anti-SLAPP motion. Second, the Court rejected the Court of Appeal's holding that election-related speech by a government is only impermissible if it expressly urges the adoption or defeat of a specific measure. Third, the Court made clear that its earlier decision in Stanson v. Mott, 17 Cal. 3d 206 (1976), "does not preclude a governmental entity from publicly expressing an opinion with regard to the merits of a proposed ballot measure, so long as it does not expend public funds to mount a campaign on the measure." Fourth, and finally, the Court held that the "potential danger to the democratic electoral process to which our court adverted in Stanson is not presented when a public entity simply informs the public of its opinion on the merits of a pending ballot measure or of the impact on the entity that passage or defeat of the measure is likely to have. Rather, the threat to the fairness of the electoral process to which Stanson referred arises when a public entity or public official is able to devote funds from the public treasury, or the publicly financed services of public employees, to campaign activities favoring or opposing such a measure." Accordingly, governments may not fund campaign activities such as radio spots and bumper stickers; however, disseminating the government's view of a measure may be permissible if it is done in a factual, and not advocative, way.

What Happens If The May Initiatives Fail?

The Assembly Republican leader speculates that the legislative majority could adopt another measure including taxes and fees by majority vote, as it did last December. Here is the story, from the Sacramento Bee's Capitol Alert.

Nanette Asimov Explains The Link Between Props. 1A and 1B

It's the latest installment in the never-ending battle over what percentage of the state budget gets allocated to education. Nanette Asimov reports here in the San Francisco Chronicle.

George Skelton on Prop. 1E

George Skelton of the Los Angeles Times writes here about Props. 1D and 1E, which both amend prior voter initiatives that raised taxes for specific purposes. He wonders whether passage of the two measures would spell the end of ballot box budgeting.

The May Proposition Opponents Talk To The LA Times

Here is a partial transcript, which focuses on the progressive opposition: Health Access, the California Budget Project and the League of Women Voters.

The Cincinnatus of California?

Here is an amusing article about Pete Stahl, who studies ballot propositions for fun and (no) profit. Give him points for opposing Prop. 1F. which bans raises for state office-holders if the budget is in deficit.

Statement of Decision in LADWP Case

Here is the statement of decision in the case brought by the Howard Jarvis Taxpayers Association against the City of Los Angeles, concerning transfers from the LA Department of Water and Power to the City's Reserve Fund. Thanks to the HJTA's Tim Bittle for sending it to me.

The Latest On The May Propositions

George Skelton of the Los Angeles Times explains here why Prop. 1C, which permits securitization of lottery proceeds, is a bad idea, while John Wildermuth of the San Francisco Chronicle describes the progressive-conservative opposition teaming up to oppose Prop. 1A here.

Court Limits Judicial Power When Parole Board's Decision Reversed

In In re Masoner (here), the Court of Appeal has limited the power of the courts to order release when a parole board denies parole on the basis of a finding that the inmate is not suitable for parole and the court finds no evidence to support that decision. The court held that an order requiring release in that situation contravenes the separation of powers; instead, the court can only vacate the board's decision and remand for consideration of whether any new evidence supports the board's original decision. Requiring release unconstitutionally limits the parole board's discretion and, additionally, impairs the Governor's power to revew release decisions. On the other hand, court-ordered release is permissible when the board orders release, the Gioverrnor reverses that decision and the court sets aside the Governor's decision for lack of evidence. The difference? The Governor, unlike the parole board, can only consider the evidence that was before the board. If no evidence in that record supports the Governor's decision, release necessarily follows.

Is The Internet Private?

Of course it isn't, since almost anything posted on the Internet can be viewed by anyone in the world with a computer and Internet access. That's one of the teachings of Moreno v. Hanford Sentinel (here), decided by the Fifth Appellate District. The plaintiff posted an "Ode to Coalinga" on her MySpace page, describing the many perceived defects of her hometown. She alleged that her former high school principal copied the poem from the internet and sent it to the local newspaper. The newspaper printed the poem as a letter to the editor, as a result of which the plaintiff's family received death threats and had to leave town, destroying her father's business. She sued the principal for invasion of privacy and intentional infliction of emotional distress.

The Court of Appeal held that plaintiff had no claim for invasion of privacy. What's on the internet is public information and can't be the basis for an invasion of privacy claim. Nor was such a claim stated because the principal supposedly tacked on the plaintiff's last name when he sent the Ode to the paper--her identity was easily verified from her MySpace site. But the court did hold--surprisingly, to my mind--that the plaintiff could sue the principal for intentional infliction of emotional distress, primarily because of his role as her former principal and the current principal of the plaintiff's sister. An interesting case, useful for reminding teenagers that once they post something on the Internet, they lose control over where it might go and what it might be used for.

LOs Angeles May Have To Refund $30 Million

Or maybe more. The Los Angeles Times reports here on a major victory for the Howard Jarvis Taxpayers Association, which sued to prevent the Los Angeles Department of Water and Power from transferring money to the City's general fund. The court's tentative decision enforces the provisions of Proposition 218, which restricts the use of utility fees for utility-related purposes. What will the city say in response? Stay tuned.

Court of Appeal Upholds Prison Bonds

Article XVI, Section 1 forbids the state from issuing any debt totaling more than $300,000 without a two-thirds vote of the Legislature and a majority vote of the people. Over time, however, this provision has become encrusted with exceptions, to the point where it no longer provides a realistic limitation on the power of the State to borrow. The latest case in this series is Taxpayers for Improving Public Safety v. Schwarzenegger (here), which upheld the State's ability to issue up to $7.4 billion of bonds to fund a massive prison construction program. Although in general Article XVI, Section 1 forbids the State from issuing debt that must be repaid by the general fund without the required votes of the Legislature and the electorate, the scheme upheld in this case as a practical matter required general fund financing. Here's how it worked. The "Public Works Board" would sell bonds to pay for prison construction. The bonds would not be repaid directly from the State's general fund. Instead, the bond payments would be made from rental payments made by the Department of Corrections and Rehabilitation (CDCR) for the use and/or availability of the prisons financed by the Board. And where would CDCR get the money to pay the rent? From prison inmates? From the lottery? No, from the general fund. So why didn't this financing scheme violate Article XVI, Section 1?

The answer is that, under the cases construing this constitutional provision, an "exception to the constitutional debt limits has been recognized where the governmental entity enters into a contingent obligation. 'A sum payable upon a contingency is not a debt, nor does it become a debt until the contingency happens.' (Doland v. Clark (1904) 143 Cal. 176, 181.) This contingency exception has been applied to uphold multiyear contracts, such as leases, where the governmental entity agrees to pay sums in succeeding periods in exchange for property, goods, or services to be provided during those periods. (Pension Obligation, supra, 152 Cal.App.4th at p. 1398.) Each periodic payment is viewed as a contemporaneous payment for the property, goods, or services received rather than an installment payment on a long-term debt." So when the State provided that CDCR would pay rent for the prisons based on their availability, issuance of the debt funded by these "rental payments" became exempt from the constitutional debt limit. especially where the bondholders could not lookdirectly to the general fund for repayment.

Is there a method to this madness? Here's the Court's attempt to manufacture a rationale: "As described earlier, the underlying purpose of [the constitutional debt] limits is to force governments to live within their means by prohibiting them from financing current expenses with future revenue. Thus, if the state were to borrow $1 billion dollars today to pay for current expenses, such as welfare benefits or employee salaries, and pay off the loan over the next several years, that would be burdening the taxpayers of tomorrow with the expenses of today. However, when a government constructs a facility that will be used for many years, it has created an asset that will benefit both current and future taxpayers. It is therefore appropriate that future taxpayers help pay for that benefit as it is used up. If, as plaintiffs suggest, the construction of a prison today should be paid for by the taxpayers of today, it is the taxpayers of tomorrow who would reap a windfall.

"In this instance, the Act provides a scheme by which large capital expenditures for prison facilities may be paid for as those facilities are used. This is consistent with the pay-as-you-go principle underlying the constitutional debt limits. Therefore, the trial court properly sustained the demurrers to plaintiffs’ complaint. "

Regrettably, the court's decision is well-founded in existing law. It also has a venerable and plausible raison d'etre. But it does do a great bit of violence to the constitutional language. Yet there seems little chance that the California Supreme Court will grant review. In this era of budget crises. the State needs the revenue, and prison construction programs are politically an easy sell.