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.