Prop. 14 faces more legal challenges: Is the party over?

By Associate Clinical Professor Jessica Levinson

This op-ed was originally published in the Los Angeles Daily Journal.

In June of 2010, voters passed Proposition 14, the open primary, top-two election law. Since that time a number of lawsuits have been filed seeking to overturn it. (Full disclosure, I have been consulted by at least one group opposing Proposition 14). Just a few weeks ago, yet another challenge was lodged against the new law.

Proposition 14 provides that any voter can vote for any candidate in the primary election and that only the top-two vote-getters, regardless of party affiliation proceed to the general election. In some districts this could mean that the general election will be a battle between two Republicans or two Democrats. Candidates will list their party preference, or lack of party preference, on the ballot.

Proposition 14 was put on the June 2010 ballot as part of a compromise to pass the 2010 state budget. Then-state Sen. Abel Maldanado (R) agreed to vote for the budget in exchange for placing his pet project, an open primary, top-two election law on the next ballot. The primary purpose of the law is to increase the number of moderate legislators. The idea is that the winner of an election under Proposition 14 will have had to appeal to a broad spectrum of the electorate.

The latest challenge alleges that the new law is impermissible because it limits minor party access to the general election ballot and makes it more difficult for minor parties to remain ballot qualified in California. Members of California's four minor parties - American Independent, Green, Libertarian, and Peace and Freedom - constitute 4.5 percent of registered voters.

The battle between our lawmakers and Amazon rages on

By Associate Clinical Professor Jessica Levinson

This op-ed was originally published in the Los Angeles Daily Journal.

One hundred years ago California voters approved a sweeping set of governmental reforms, which included the introduction of the initiative, referendum and recall. Those reforms were aimed, at least in large part, at giving power to citizens. The initiative, referendum and recall were instituted to allow citizens to check government power, particularly in the case of legislators too cozy with special interest groups.

So one has to ask, when progressives pushed their reform package through the Legislature, could they have predicted that those reforms would be high jacked by special interests groups that were seen to pose a threat to the integrity of the electoral and political processes? While the names of those attempting to influence the government have changed - the 1911 reform package was enacted in large part as a response to the growing power of the Southern Pacific Railroad over the state government - the concerns about their power remain the same. Instead of worrying about the power of a railroad company over our elected officials, we can now ponder the influence of brick-and-mortar and online retailers, like Wal-Mart, Barnes & Noble, eBay and Amazon.

The process meant to empower citizens to check the power of their public servants also allows any group with the ability to raise $2 million to counter legislative decisions, both good and bad (rare as they may be, it is still possible that our lawmakers make good public policy decisions every now and again) by threatening to overturn those decisions at the ballot box.

One of the latest ballot box battles centers on the so-called "Amazon Tax." When California lawmakers enacted a budget for the current fiscal year back in June, that budget included a tax on online retail sales. The tax would raise an estimated $200 million in revenue. Quite understandably, Amazon is none too happy.

Amazon immediately promised to endeavor to qualify a ballot measure, a referendum, which would overturn that tax. Amazon has laid the groundwork for a measure appearing on the June 2012 ballot.

Do Californians Have the Right to See the Current Budgets and Expenditures of their Lawmakers?

This op-ed was originally published by KCET.

By Associate Clinical Professor Jessica A. Levinson

Doing absolutely nothing to help their already dismal public approval ratings, the state Assembly has refused requests--submitted under the Legislative Open Records Act--to release records of legislators' 2010 and 2011 budgets (money given to rank and file legislators by the leadership) and expenditures. Now The Sacramento Bee and Los Angeles Times are suing to obtain those records.

The newspapers argue that the budget and spending records document public resources used for public business, and should be released based on a constitutional right to access information about government activities.

The Assembly Rules Committee, on the other hand, claims that it need not release those documents because the records fall under exceptions to the Legislative Open Records Act for "correspondence of and to individual members of the Legislature and their staff," and "preliminary drafts, notes or legislative memoranda." An Assembly administrator has argued that the records of lawmakers' current budgets and spending could contain confidential personnel information. Basically, the Assembly Rules Committee claims that those documents, which detail use of public funds by public officials, are privileged.

Read the complete post at KCET.org.

California's Living Originalism

Recent graduate Michael Boardman published the following op-ed in the Friday, May 20 edition of the Los Angeles Daily Journal.

By Michael Boardman, Class of 2011

Back in January, a California Court of Appeal sided with one of California's most influential special interests, the Howard Jarvis Taxpayer Association, and overturned the state Legislature's ability to draft language for the titles and summaries that explain legislative initiatives on state ballots.

The decision itself is not necessarily a surprise. Titles of initiatives are supposed to be impartial descriptions, yet the Legislature had suggestively titled Proposition 9 the "Safe, Reliable High-Speed Passenger Train Bond Act," and the Howard Jarvis Taxpayer Association has been a juggernaut in state politics since it shepherded the infamous Proposition 13 in 1978. The surprise is that Jarvis and other special interests have repeatedly transformed the California Constitution with the help of the courts' standard of review, which takes inspiration from the harshest critics of constitutional dynamism -- the originalists.

For decades, the state Supreme Court has interpreted ambiguous language in initiatives by attempting to identify the intent of the voters. Since voters function as the legislature in direct democracy, this practice appears to be a natural extension of traditional statutory construction principles; courts generally seek to resolve ambiguities in the plain language of the law by identifying the intent of the lawmakers and interpreting their words accordingly.

But on a closer look, California's scheme seems to confuse philosophical principles, acting as a sort of Scalia-Breyer hybrid by using originalist principles to create a dynamic constitution. On the one hand, the court interprets initiative amendments based on the understanding of the public at the time it was passed (Justice Antonin Scalia's "original understanding"), and on the other it relies heavily on election materials as "legislative history," which Scalia finds largely irrelevant, to interpret initiative statutes consistently with current norms (Justice Stephen G. Breyer's responsive "living document"). This strange combination of values essentially creates a series of floating "originalist" interpretations, each based on its own constitutional amendment, a practice that tethers new laws to past interpretations and erodes the basic principles of California's direct democracy.