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A viewpoint by Thomas D. Elias: New threat to public's right to pass laws

February 27, 2001

For more than 30 years, state legislators have tried to find ways to thwart California's initiative process, which allows voters to overrule decisions of entrenched elected officials and make their own laws whenever they wish.

Five commissions appointed by the lawmakers tried to figure a way to take back the Legislature's former power and thwart this ultimate populist tool — without arousing the wrath of the voters. Now a judge has given that effort a boost.

One past proposal would have had legislators or judges vet proposed initiatives before they're placed on the ballot. Another aimed to delay initiatives' appearance for up to two years so lawmakers could enact some watered-down version of what the initiative sponsors want.

No such measure has ever gotten far. The reason: Despite all the flaws of the initiative process — and there are plenty — Californians love having the right to make the state's key decisions. The most important and successful laws of the last three decades have been passed by the people, not the Legislature — ranging from property tax cuts to affirmative action reform to nuclear power and coastal protection.

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But the popular initiative now faces its most serious threat since a 1970 court decision jump-started the process by opening shopping centers to petition carriers.

The danger comes from a Los Angeles Superior Court ruling that the other day invalidated a local Orange County initiative that passed by a two-thirds majority last March. Measure F aimed to keep county supervisors from converting the former El Toro Marine Air Station into a large regional airport by setting up a new requirement for voter approval of large public works projects such as airports.

The subject matter was only slightly different from the local slow-growth measures voters have considered in locales as different as San Diego and Tracy, Ventura County and Sonoma County, over the last couple of years.

When Orange County supervisors challenged Measure F in part because they resented the voters' taking decision-making power out of their hands, no judge in the county would hear the case because of potential conflicts of interest. So it wound up in the lap of Los Angeles Judge S. James Otero. He's now ruled that what voters want doesn't matter. Because the state Legislature long ago gave land-use authority to county boards, he said, supervisors get the final say on airports and other projects.

Measure F was "fundamentally flawed" because it tried to take that authority away not just for the proposed airport but for other future projects, too, Otero ruled.

Implied in his ruling was the notion that if voters don't like what the supervisors do, they can always replace them. This ignores the fact that change doesn't come easily in the case of supervisors in many counties, whose ties to lobbyists often give them access to many times the campaign dollars their challengers can raise. Only rarely are incumbent county supervisors defeated for reelection anywhere in California. What's more, since most supervisors serve four-year terms, their decisions on many projects can be implemented and construction begun long before they come up for reelection.

So when the majority of voters wants to take control of key development questions, the initiative is often the only path open to them. If it stands, Otero's ruling means that voters would have little recourse other than recalls when they want to stop a government action they don't like.

Because it was strictly local, the ruling does not yet apply to areas outside Orange County. But if it stands up on appeal, it will have consequences across California.

If courts can prevent Orange County voters from stopping or reversing their supervisors' actions, many statewide initiatives will suddenly be threatened. Almost every significant statewide initiative has been the product of voter frustration over either legislative inaction in the face of major problems or unpopular moves by the Legislature. Lawmakers are always aware they can be overridden or reversed via an initiative.

This knowledge sometimes forces assemblymen and state senators to act even when it's uncomfortable for them. But if voters couldn't take things into their own hands, there would be nothing to prevent problems from festering.

Yes, some initiatives are the products of corporate special interests.

Yes, there are serious problems with lies in initiative advertising and with the influence of big-money initiative ad campaigns.

But initiatives remain the public's last resort. That why Roger Diamond doesn't like the Otero decision. Diamond is the Los Angeles constitutional lawyer who won the long-ago case that opened shopping centers.

"There have been plenty of initiatives I haven't liked in the last 30 years," he says. "But the process is more important than any one issue. Every time an initiative is knocked out by the courts, it's another nail in the coffin of the voting public's rights."

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