Change The Two-Thirds Budget Requirement? Not Likely

For the obvious reason that a proposed constitutional amendment to change the two-thirds vote requirement for enacting a budget itself requires a two-thirds vote. Calbuzz reports here.

No Damages For Violating Right to Petition

In MHC Financing Limited Partnership Two v. City of Santee (here), the Court of Appeal has held that compensatory damages are unavailable for a violation of Article I, Section 3(a), which grants the “right to petition.” This holding is neither novel nor surprising. The California Supreme Court had already held in Katzberg v. Regents of the University of California, 29 Cal. 4th 300 (2002), that damages are not available for a violation of the California Constitution’s due process clause, and similarly held in Degrassi v. Cook, 29 Cal. 4th 333 (2002), that damages are not available for a violation of the California Constitution’s free speech provision. The MHC decision arises in a unique factual setting (the city council had enacted the wrong initiative), and comports with existing precedent. It therefore is an unlikely candidate for California Supreme Court review.

Court Upholds LAX Solicitation Ban, Ducks "Public Forum" Issue

In ISKCON v. City of Los Angeles (here), the California Supreme Court held that a ban on "Immediate solicitation" (i.e., soliciting an immediate contribution) in the public areas of Los Angeles Airport was a reasonable time, place and manner restriction, regardless of whether these areas constituted a "public forum" under the "liberty of speech" clause of the California Constitution (art. I, sec. 2(a)). The Court's earlier decision in Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352 (2000), had held that a ban on solicitation was not content-based. As a result, the solicitation ban at issue in ISKCON only had to satisfy the less exacting standards applicable to content-neutral time, place and manner restrictions--i.e., that they be narrowly tailored, serve a significant governmental interest and leave open ample alternative means of communication.

The Court first held that the narrow tailoring requirement does not incorporate a "less drastic alternative" standard--i.e., the government need not prove that no less speech-restricting alternative would further the same interest. Instead, it requires only that the challenged law promote a substantial governmental interest that would be achieved less effectively absent the regulation. The solicitation ban met this requirement (it's hard to imagine an ordinance that wouldn't) in light of the special intrusiveness of requests for an immediate donation of funds and the "often crowded and hectic environment of a large international airport." Moreover, solicitation of funds creates problems of duress and fraud that other speech does not. The Court rejected the district court's finding that these interests could only justify a ban on solicitation during peak hours or in busy locations, because these times and locations vary. Finally, the court held that the ban left open ample alternative means of communication; the plaintiff could solicit funds elsewhere and could even solicit in the airport as long as they did not ask for an immediate donation of money.

Justice Kennard concurred. She dissented in Los Angeles Alliance for Survival v. City of Los Angeles, and continued to believe that a solicitation ban was content-based. But, given that decision, she concurred that the solicitation ban met the time, place and manner standard. Indeed, she said so forcefully, stating that "[s]peech activities at airports that interfere with the legitimate interests of the airport management, arriving or departing passengers, or airline or airport employees need not be tolerated." She also indicated, somewhat contradictorily, that she viewed the public areas of LAX as a public forum. So, despite her strong language, it's not clear how she would have voted had she not been compelled to follow Los Angeles Alliance for Survival.

Justices Chin, Baxter and Corrigan also concurred, taking the opposite tack from Justice Kennard. They would have held that the common areas of LAX are not a public forum. Accordingly, they had no problem upholding the no-solicitation ban.

This opinion conforms California law to federal law in analyzing time, place and manner restrictions. Accordingly, it may have a broad impact outside the somewhat special context of airport speech.

Line Item Vetoes Upheld

The Court of Appeal, in an opinion by Justice Kline, has upheld the Governor's exercise of his line-item veto authority over amendments by the Legislature to a previously enacted budget bill. In other words, the court has held that a bill amending appropriations made in a prior budget bill contains appropriations that are themselves subject to line-item veto. The opinion is here.

Tepid Support for Constitutional Change

Why did the con-con measures not get the necessary financial support? Backers blamed the recession, but perhaps because of polls like this. The Sacramento Bee reports here. Voters believe the state government is riddled with fraud and waste, and want spending cuts prior to tax increases. They also oppose deleting the two-thirds requirement to pass a budget. Meanwhile, California Forward's budget reform initiative is also in jeopardy, as the Bee reports here.

Taxes or Fees?

Like beauty, it seems to be in the eye of the beholder. The Sacramento Bee reports here.