Taking the Initiative from the Legislature
By [post_author] –
Posted on Freedom Advocates on February 19th 2008
In 1983 California voters passed an initiative requiring that the
legislative process be open to public review and comment. Since then
the legislature has modified the content of the open meeting law. The
state Constitution requires that all modifications to voter initiative
statutes be obtained through voter approval. Why don’t legislators
follow the law?
Sacramento, CA Under our form of government, the Legislature is a creature of the Constitution, it owes its existence to that instrument, it derives its power from it; that is, the voice of the people in their original and unlimited capacity, fixing the limits of legislative power. (Nougues v. Douglass (1857) 7 Cal. 65, 78.) One of the primary means of securing the Legislature’s adherence to those limits is found in our legislative open meetings laws and in the Legislative Open Records Act (LORA). These laws are premised on the notion that access to information concerning the conduct of the people’s business by the Legislature is a fundamental and necessary right of every citizen in this state. (Gov. Code, § 9070.)
Unfortunately, the Legislature is not always willing to adhere to the limitations the people have imposed upon it. For instance, the Legislature’s predisposition towards secrecy and its continuing failure to comply with certain public notice and open meeting requirements motivated the people to adopt the Legislative Reform Act of 1983 (Proposition 24) through the exercise of their initiative power at the June 5, 1984 election. Proposition 24 contained sweeping provisions regulating the internal operating procedures of the Legislature as well as provisions imposing open meeting requirements on the Legislature. Although a large part of Proposition 24 was held invalid in People’s Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, the court in that case did uphold the validity of Propositions 24’s open meeting provisions.
The open meeting provisions enacted by Proposition 24 were premised on the people’s declared finding that [t]he Legislature’s refusal to adhere to statutory and traditional notice and publication requirements for committee hearings has deprived the public of its right to make effective input into the legislative process. (Gov. Code, § 9901(g).) The open meeting provisions were thus designed with an aim towards preserving accountability in the legislative process, and those provisions generally require, subject to narrow exceptions, that all meetings of either House of the Legislature or any of their respective committees be open to the public and preceded by “full and timely public notice. (Gov. Code, § 9926; see also Gov. Code, § 9028.) To enforce these requirements, Proposition 24 also enacted Government Code section 9929, declaring that each member of the Legislature who knowingly attends a meeting held in violation of open meeting requirements guilty of a misdemeanor.
Unpleased with the open meeting requirements imposed upon it by the people, the Legislature subsequently undertook to gut those laws of any teeth. The Legislature accomplished this in 1989 by adopting Assembly Bill No. 427 (A.B. 427). On its face, A.B. 427 appears to be a simple house-keeping measure designed to better organize provisions of the Government Code by repealing the open meeting provisions of Proposition 24 (codified at Government Code section 9926 et seq.) and reenacting those provisions at Government Code section 9027 et seq. What is conspicuously missing from the reenacted provisions, however, are the misdemeanor liability provisions of former section 9929. The Legislature thus stripped the legislative open meeting laws of the only means of enforcing those laws, thereby giving its members de facto immunity for violating open meeting requirements.
However, the Legislature’s actions in repealing section 9929 have far greater significance. Article II, section 10, subdivision (c), of our state Constitution explicitly prohibits the Legislature from amending or repealing initiative statutes without the consent or approval of the people. Our courts have acknowledged that the initiative is not described by our Constitution as right granted the people, but as a power reserved by them. (Associated Home Builders of the Greater Eastbay, Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591.) So great and absolute is the people’s initiative power that our courts have further sworn themselves to the solemn duty to jealously guard, protect, and defend it.
Proposition 24 by its own terms specifically reinforces the constitutional command that the Legislature is not free to amend or repeal its provisions without the people’s approval. (Gov. Code, § 9904.) Evidently, the Legislature was unperturbed by these constitutional commands. Although A.B. 427 was approved by both Houses of the Legislature and subsequently signed by the Governor, it was never, and has never been, submitted to the people for their approval.
In enacting Proposition 24, the people explicitly declared that they have the right to have notice of, see, and express their feelings on all proposed changes in the laws and any knowing and willful violation of these rights should be a criminal offense and the laws passed in violation thereof invalidated. (Gov. Code, § 9902(f).) The Legislature’s repeal of the misdemeanor liability provisions of former Government Code section 9929 runs roughshod over this pure expression of the people’s will.
The Legislature’s attempt to quietly rid itself of the restrictions imposed upon it by those over whom it is established to serve reverberates as nothing less than a slap in the face to the sovereignty inherent in the people of this state. Indeed, underlying the Legislature’s conduct is the simple idea that it and its members are above the law and not subject to punishment. Yet, ours is a government of laws, not of men, and it is beyond dispute that in our state no man is above the law.
With the belief that neither it nor its members can be subject to punishment, the Legislature and its committees continue to hold secret meetings. For instance, in early 2002, the Legislature’s Joint Committee on Rules held a series of secret, closed-session meetings to consider the Capitol Park Safety and Security Improvements Project (Capitol Project), a publicly-funded construction project on the State Capitol grounds. While the Legislature is authorized to hold closed-session meetings in certain narrowly defined circumstances, our Constitution specifically requires that reasonable notice of the closed session and the purpose of the closed session shall be provided to the public. (
Cal. Const., art. IV, § 7(c)(3); see Gov. Code, §§ 9028, 9926.) None of these meetings were ever preceded by any public notice.
At those secret meetings in 2002, the Joint Committee on Rules instructed the Department of General Services (DGS) to initiate public comment and bidding requirements for the project. However, that was never done. That is because DGS is subject to competitive bidding requirements when it bids and awards public construction projects. Competitive bidding prohibits DGS from discriminating between union and nonunion employers when bidding and awarding contracts. Subsequent e-mails between members of the Legislature and officials at DGS demonstrate that the Legislature was unpleased with the political ramifications it suffered when DGS awarded an earlier contract to a nonunion shop. To avoid a recurrence of such undesirable political results, sometime between November 2004 and January 2005, the Joint Committee on Rules (again, in a series of secret, closed-session meetings conducted without any public notice) seized the Capitol Project from DGS’s control in order to free the project from competitive bidding requirements so that it could be awarded to a union-only shop.
Thus, no public comment ever occurred; in fact, the entire process was entirely shielded from public view virtually until physical construction around the State Capitol grounds actually began. This is exactly the type of secretive, backroom dealing which led the people of this state to adopt legislative open meeting reforms in 1984. It is also the exact type of conduct which frustrates the ability of the people to retain control over their government and which the people declared should be subject to criminal punishment.
Ultimately, that the Legislature would be likely to resist the limits imposed upon it by the people of this state was not an unanticipated situation. Our state Constitution thus declares that any attempt by the Legislature to amend or repeal an initiative statute will become effective only when approved by the electors. (
Cal.Const., art. II, § 10(c).) Therefore, having never been approved by the people, A.B. 427 lacks any legal force. The people of this state should thus be confident that their will has not been undone; and the Legislature should be on notice that neither it nor its members are above the law.
Ronald A. Zumbrun is Managing Attorney of The Zumbrun Law Firm, a Sacramento-based public issues firm. Todd M. Ratshin, Associate Attorney with The Zumbrun Law Firm, assisted in preparing this article. You can learn more about The Zumbrun Law Firm at http://www.zumbrunlaw.com/.
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