Unlike our federal structure of government, which places the legislative power exclusively in the hands of elected representatives, California’s state constitution, like a handful of other states’ constitutions, allows voters to legislate through the initiative process. This is known as “direct democracy.”
In California, the people’s initiative power has been described as “one of the most precious rights of our democratic process.” Voter initiatives can be a way for the public to take action when politicians refuse to do so. In that way, the initiative power often operates as a check on the political branches. On the downside, it is why California’s constitution is cluttered with hundreds of amendments, amassed into one of the longest constitutions in the world.
The California Supreme Court recently grappled with the initiative power in California Cannabis Coalition v. City of Upland, a case that has surprisingly little to do with marijuana. The local initiative at issue sought to allow up to three medical marijuana dispensaries in the City of Upland, provided that each dispensary paid a $75,000 annual fee, and requested that the initiative be voted on at a special election. After concluding that the “fee” was a general tax in disguise, the city council decided that the initiative had to be voted on in at the next November general election.
The initiative’s proponents then sued, asserting that the initiative should be voted on in a special election as requested. The trial court ruled that California’s constitution requires general tax increases to be decided by voters at a general election, but the court of appeal reversed, holding that the constitutional provision invoked by the trial court applies only to taxes imposed by “local government,” not voters. The California Supreme Court granted review to decide the question.
The Supreme Court’s majority opinion framed the case as a conflict between the people’s constitutional right to legislate by initiative, on the one hand, and article XIII C of the state constitution, which limits the ability of “local governments ... to impose, extend, or increase any general tax.” The question, according to the majority, was whether article XIII C restricted the ability of voters to impose taxes via initiative.
Article XIII C curbed local general tax increases by requiring such taxes to be approved by the voters at a general election—the idea being, as one court put it, that general taxes should be “voted on in general elections with their traditionally larger turnouts, not done in a corner in the middle of January in an odd-numbered year.”
In a split decision, the high court ruled that voters are not bound by article XIII C’s general election requirement. Adopting a clear-statement rule, the majority held that without a direct reference in the text to voter initiatives, or some other unambiguous indication, the court would not construe a provision to limit the people’s initiative power. Because article XIII C’s reference to “local governments” could refer simply to a local government entity like a city council, the court held that the provision did not apply to voter initiatives.
Dissenting from the majority’s analysis, Justices Kruger and Liu questioned “by what authority” the majority purported to “dictate to legislative drafters the forms in which laws must be written to express the legislative intent.” In their view, “[a] local government tax is a local government tax, no matter how it may have been legislated into being.” They argued that applying article XIII C to voters would not, as the majority claimed, “squelch voters’ initiative rights.” Rather, the provision leaves voters free to propose initiative measures and “envisions a specific avenue for voter participation—approval at a general election.”
Ultimately, the majority and the dissent agreed that, going forward, voters may “bind themselves by making it more difficult to enact initiatives in the future,” just as Ulysses “tied himself to the mast so he could resist the Sirens’ tempting song.” This, of course, would raise separate questions not answered here: Would such self-imposed limits on the initiative power be constitutional? If so, would such limits ever amount to a structural constitutional change (a “revision,” in California’s vernacular), requiring a supermajority of the legislature and a majority vote of the electorate? These question will have to wait until voters decide to tie themselves to the mast.
*Josh McDaniel is an appellate attorney at Horvitz & Levy, LLP, and is president of the Federalist Society’s Los Angeles Lawyers’ Chapter.