Most ballot initiatives end with a severability clause declaring that if a portion of the new law is invalidated the remainder will remain in effect. Not so the pension reform initiative filed yesterday by San Jose Mayor Chuck Reed and a number of other mayors from around the state. Thank the action – or lack of action, really — of the governor and attorney general in relation to Proposition 8, the gay marriage initiative, for a new, additional section.
The proponents of the pension initiative state in a final section following the severability clause that if the initiative passes and is challenged in the courts, and the government refuses to defend the measure, the proponents will have the standing to defend the initiative.
Recall the United States Supreme Court stated in the Proposition 8 case that the proponents did not have standing to defend the initiative when the governor and attorney general bowed out.
The proponents of the pension initiative do not want to leave their measure defenseless if a court challenge comes – and if the initiative passes you can bet there will be a court challenge from the public employee unions that oppose the initiative.
The successful San Jose pension reform backed by Mayor Reed has been attacked in the courts. So has the San Diego pension reform that voters approved.
Proponents for the new, statewide pension reform proposal want no make it clear they have the power to respond to a lawsuit. The measure states that the act grants “formal authority to the proponents to defend this Act in any legal proceedings…”
Authority is a key word because the Supreme Court dismissed the proponents in the Prop 8 case saying there was no formal declaration of authority granted to the defenders of the initiative.
Furthermore, the mayors wrote in the initiative that in their capacity of defending the measure they will do so under the Oath set forth in Article 20 in the state constitution that is required of legislators and other public officers. The provision also states that the proponents are entitled to recover legal fees and related costs from the state.
While state courts have generally given preference to ballot proponents during courtroom squabbles, this section of the initiative, while intended to strengthen the proponents standing with the state courts, is aimed at the federal judiciary. The controversial initiative provision of requiring current employees from altering pension benefits going forward would likely end up in a federal court.
Many future initiatives will probably carry this kind of final declaration on standing.
Following the Proposition 8 decision, many advocates from across the political spectrum expressed concern that a law passed by the people could be abandoned by the people’s representative before a court of law leaving a measure defenseless. I wrote at the time to expect an across-the-political-spectrum effort to give proponents power to defend initiatives through a constitutional amendment.
It seems proponents of the pension reform initiative have decided to take matters into their own hands.