An initiative that would make it harder to raise taxes in California and that by its own terms is intended to “reverse hostile court decisions,” including at least two by the California Supreme Court, was ordered off the ballot today by the court itself. In Legislature v. Weber, the court concludes that, even though the initiative garnered a sufficient number of signatures to qualify for this November’s election, the measure’s proposed changes “cannot be enacted by initiative” because they “would substantially alter our basic plan of government.”
The court’s unanimous opinion by Justice Goodwin Liu grants an original writ petition filed by the state Legislature, Governor Gavin Newsom, and former state Senator John Burton. In broad terms, it finds that the initiative — titled the “Taxpayer Protection and Government Accountability Act” — would so dramatically reshape the state government structure for raising revenues that it can be accomplished only by revising, not amending, California’s constitution. While constitutional amendments can be done by initiative, revisions are allowed only by submitting to voters changes that have first been approved by a constitutional convention or by a supermajority of the Legislature. (See Cal. Const., art. XVIII.)
Among other things, the court concludes the TPA’s provision “prevent[ing] the Legislature from enacting any new tax without voter approval” is a change that “would significantly alter the existing constitutional balance between direct democracy and representative democracy, with reverberations throughout the framework of our government.”
The court also finds important that “the TPA would significantly rework the current balance between legislative and executive functions at the state and local level.”
The opinion says the initiative would end the Legislature’s “authori[ty] to decide whether to set certain fees itself or to delegate the task to various agencies.” Instead, the Legislature would “be tasked with considering and voting on a multitude of fees currently set by agencies,” such as the “more than 70 different fees” that the Department of Motor Vehicles collects, fees that account for over $8 billion in annual revenue. That “would materially reshape the nature and volume of the Legislature’s everyday work and its overall function and efficacy in our system of governance,” the court concludes.
Similarly, the court deems significant that the initiative would “substantially alter[ ] the power of local governments to delegate decision-making authority to their own agencies.” The opinion gives as examples, “a local utility would no longer be able to adjust rates without a local governing body passing an ordinance, and a community center would no longer be able to impose user fee charges for facility rentals without engaging in a legislative process.” As with the state as a whole, the court says “the reassignment of local fee-setting from administrative to legislative processes would substantially alter the processes by which local governments raise revenue and, in so doing, would significantly alter the work of local government itself.”
The court also finds to be a “significant change” “the TPA’s expansion of the referendum power to cover all agency fines and fees that qualify as exempt charges.” Because a law is put on hold when a referendum qualifies for the ballot, “[a]ll state and local charges, no matter how essential, would be subject to delays that could be triggered by a small minority of voters in a given jurisdiction.”
The opinion does, however, leave open the possibility that parts of the TPA could separately be enacted by initiative. The court says, “We decide only whether the measure, taken as a whole, would accomplish a revision” and it leaves unanswered “[w]hether any individual component of the TPA would constitute a revision standing alone.”
Why didn’t the court wait to see if voters would reject the initiative, thereby mooting the writ petition? The opinion explains that “preelection review” is appropriate because “ ‘deferring a decision until after the election not only will defeat the constitutionally contemplated procedure . . . , but may contribute to an increasing cynicism on the part of the electorate with respect to the efficacy of the initiative process.’ [Citation.] ‘ “The presence of an invalid measure on the ballot steals attention, time, and money from the numerous valid propositions on the same ballot. It will confuse some voters and frustrate others, and an ultimate decision that the measure is invalid, coming after the voters have voted in favor of the measure, tends to denigrate the legitimate use of the initiative procedure.” ’ ”
It’s mildly surprising that an opinion of this magnitude was not authored by the Chief Justice. (See here and here.)