Originally posted at Fox & Hounds Daily.
By Tim Bittle.

In a recent decision by the Fourth District Court of Appeal, Mission Springs Water District v. Verjil, the court gives government a tool to easily defeat any initiative it doesn’t like by simply withholding it from the ballot and suing the proponents.  It is no exaggeration to say that, if the case is not overruled, it will be the death of the people’s initiative power at the local level in California.

In Mission Springs, our clients reacted to a 40% utility rate increase by collecting signatures to qualify an initiative that would roll back the increase, but allow annual CPI adjustments.  Although required by statute to place the initiative on the next regularly scheduled election ballot, the utility district withheld the initiative from the ballot and instead sued the initiative proponents for declaratory relief.  It alleged that, without the 40% increase, it would be unable to pay its bills (a claim that our clients, all former elected officials, say is bogus).

We filed an anti-SLAPP motion, seeking to dismiss the case as a meritless “Strategic Lawsuit Against Public Participation.”  Our theory was that local agencies, when presented with a duly qualified initiative, do not have the option of withholding it from the voters and filing a years-long action for declaratory relief.  Rather, they are required by statute to place the initiative on the ballot and let the voters approve or reject it while the issue is timely.  If the voters reject the initiative, it is then unnecessary for either side to incur the expense of litigation.  If the voters approve it, there is still ample opportunity for the agency to seek judicial review.

The court of appeal denied our anti-SLAPP motion.  The court held that, where a local agency contends that an initiative is invalid and for that reason withholds it from the ballot, it may then sue the proponents for declaratory relief on any and all theories of invalidity, even though such cases take years to decide and necessarily entail the continued withholding of the initiative from the ballot until a final decision is rendered by the courts.

The law prior to Mission Springs allowed a pre-election challenge to an initiative in only two cases: (1) when the proponents had failed to comply with the procedural requirements necessary to qualify an initiative for the ballot, as when, for example, they neglected to publish notice in the newspaper, or (2) when the subject was not one that properly may be enacted by initiative, as when, for example, it is not legislative in character.  Such cases involve pure questions of law that can be decided quickly before the ballots must go to print.

The Legislature has provided an expedited procedure, which, prior to Mission Springs, was the exclusive procedure for pre-election challenges.  Per that procedure, the Registrar makes the proposed contents of the ballot available for public examination for 10 days, during which time anyone “may seek a writ of mandate or an injunction requiring any material to be amended or deleted.” The case is entitled to preference over all other civil matters, and the courts must render a decision before the ballots go to print.

The Elections Code procedure was designed for prompt resolution, so that opponents of an initiative could not, by simply filing a lawsuit, prevent an initiative from appearing on the ballot for which it qualified.  All that has changed now because Mission Springs holds that the Elections Code procedure is not the exclusive method for pre-election challenges.

Instead of placing the initiative on the ballot and following the fast-track Elections Code procedure to remove it (if one of the two limited grounds for pre-election removal is present), the government may now simply withhold an initiative from the ballot for any reason, and file an unhurried action for declaratory relief against the proponents.  Then, whether the government wins the case or loses, it wins–because it has succeeded in keeping the initiative off the ballot (and has sent a strong message to other would-be initiative proponents that any attempt to exercise the people’s right will be futile, and will be punished).

While Mission Springs involved an initiative to roll back a rate increase, the decision affects more than just tax initiatives.  Initiatives that propose growth controls, land uses, rent regulation, government transparency, term limits, campaign finance restrictions, public pension reform, and many other controversial policies, have met opposition from elected officials.  That is why the people, in their constitution, reserved the power of initiative–so that they could pass needed laws that their elected officials were unwilling to enact, and may actively oppose.

If elected officials can prevent such initiatives from ever seeing the light of day, and if the proponents are rewarded for their time and sacrifice by getting dragged into court for years to defend an idea that was never even presented to the voters, then the right of initiative may as well not exist, for no sane person would exercise it.  For a meaningful right of initiative to continue to exist in California, it is imperative that the Mission Springs decision be reversed.

We have filed our Petition for Review with the California Supreme Court.  We ask those that have an interest in the continued vitality of the people’s initiative power to file a letter with the Supreme Court supporting review.  I expect the District’s Answer to be filed around October 3rd.  Amici letters can be filed anytime after that.

Anyone having further questions about the case or about filing an amicus letter, can contact me at the Howard Jarvis Taxpayers Association: (916) 444-9950.