Update on Proposition 11

While the opponents of Proposition 8 have conceded, the fate of Proposition 11 is still uncertain. At the moment, according to the Secretary of State's web-page (here), it's leading by a little less than 140,000 votes. That sounds like a lot, but according to the SOS's "unprocessed ballot report" (here), there are 2.7 million ballots still to be counted. That seems like an incredible number four days after the election. This could take a while.

A Right To Fish?

Did you know you have a right to fish under the California Constitution? Article I, Section 25 states that "[t]he people shall have the right to fish upon and from the public lands of the State and in the waters thereof . . . ." So San Francisco attorney Karl Olson, no stranger to constitutional litigation, has filed a lawsuit against the owner, operator and pilot of the Cosco Busan, the tanker that one year ago today sideswiped a support tower for the Bay Bridge. The lawsuit was filed as a class action contending that the oil spill eliminated the plaintiffs' right to fish in part of the San Framcisco Bay. Here's a link to the article in the Chronicle describing the case, and here (thanks to Karl Olson) is a copy of the complaint. But does Article I, Section 25 contain a "state action" requirement? Stay tuned.

More on the Proposition 8 Litigation

The California Supreme Court has posted the pleadings from all three Proposition 8 cases on the court's website (here). And Jeffrey Rosen has written an interesting article on the relationship between the California Supreme Court's prior decision in the Marriage Cases and Proposition 8's success (here). And here is a news article quoting California Supreme Court scholar Gerry Uelmen, who is pessimistic about the petitioners' "revision" argument.

Court of Appeal Modifies Sturgeon Opinion

The Court of Appeal has issued an order (here) changing some of the language in the Sturgeon opinion, but not the result or the essential details of the court's reasoning. Some changes correct typos, while others are (slightly) more substantive. The most significant change is the addition of a new paragraph to the conclusion, which reads like an attempt to minimize the significance of the decision (and presumably decrease the likelihood of Supreme Court review): "As we have noted, there are valid reasons the county provides its judges with generous employment benefits beyond the employment benefits provided by the state. However, the defect we have found in the method by which those benefits have been provided is itself substantial and important. Under our constitutional scheme, judicial compensation is a matter of statewide concern and the Legislature must set policy with respect to all aspects of judicial compensation. As the cases we have discussed demonstrate, the Legislature's obligation to 'prescribe judicial compensation' requires that it set forth standards or safeguards which assure that fundamental policy is implemented. The fact that the Legislature provided counties a credit for judicial benefits when it enacted Lockyer-Isenberg or that it assured the counties that judicial benefits would not be decreased as a result of trial court funding does not meet these requirements. The obligation is not onerous, but does require that the Legislature consider the specific issue and, at a minimum, establish or reference identifiable standards."

Other Election News

Proposition 8 was not the only initiative that passed yesterday amending the California Constitution. Propositions 9 and 11 also passed. (The links are to the Attorney's General's title and summary, from which you can navigate to the analysis, the ballot arguments and the text of the two measures.) So now crime victims have more rights and reapportionment of the Legislature and State Board of Equalization (but not the House of Representatives) is in the hands of a citizens' commission.

First The Election, Then The Litigation

A day after the election, and the day that Proposition 8 becomes effective, the opponents of Proposition 8 have filed a petition for writ of mandate challenging its legality in the California Supreme Court. The petition is available here and a link to the Supreme Court's docket is here. And here is a link to the docket in the similar case filed by San Francisco, the City of Los Angeles and the County of Santa Clara (and here is their petition).

Reforming the Referendum and Initiative Process

Here's an interesting article from the Sacramento Bee (here), which proposes making referenda easier and initiatives harder. Interesting comparison between California's experience with direct democracy and that of Switzerland.