Constitutional Issues Concerning the Right of Local Initiative in California
The California Constitution reserves to the people the right to enact laws directly by initiative.1 Since 1976, the exercise of this right in local elections has given rise to considerable litigation.
This article explores the right of local initiative, the limitations on that right, and the continually greater deference given that right, culminating with last year’s decision of the California Supreme Court in California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 935 (“California Cannabis”).
Background
The California Constitution states in its very first section, “All political power is inherent in the people. Government is instituted for their protection . . . and they have the right to alter or reform it when the public good may require.”2 Further, while the legislative power is vested in the California Legislature the power of initiative is reserved to the people.3
The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.4
The right of statewide initiative has been in the California Constitution since 1879.5 In 1911, the voters extended the right of initiative to cities and counties.6 Currently, this right of local initiative is found in Article II, Section 11. It states, “[The] initiative . . . [power] may be exercised by the electors of each city or county under procedures that the Legislature shall provide.”7 The procedures are contained in Sections 9200-9226 of the Elections Code.
Early History
One of the first California Supreme Court cases to construe the 1911 amendment to the California Constitution was Galvin v. Board of Supervisors (1925) 195 Cal. 686. It involved the validity of an initiative to grant a franchise to a private company to build a toll bridge across the Carquinez Strait to connect Contra Costa to Solano County. 8
In deciding whether to grant a writ of mandate to compel the Board of Supervisors to place the initiative on the ballot, the Court noted that the Constitution states a local legislative body may only make ordinances not in conflict with general laws.[9] The Court concluded that the same restriction applies to the electors of the County. Since existing general laws would have required the County to notify the adjoining county and the state engineer before adopting such an ordinance, so those laws required the people to do so as well. Because these things had not been done, the County was not required to place the initiative on the ballot.
In Hurst v. City of Burlingame (1929) 207 Cal. 134, the owner of a lumberyard sued to enjoin enforcement of an ordinance that rezoned his property as residential, arguing the City had not complied with requirements for re-zoning property. The Court ruled the injunction was properly granted because zoning changes are required to be submitted to the planning commission and be subject to public hearings before being adopted, and these things did not occur.
With one exception,10 the Court did not discuss the principle reflected in Galvin and Hurst again for nearly fifty years, when it dramatically changed course by overruling Hurst in Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582. This step gave rise to a series of subsequent California Supreme Court cases, as opponents sought new ways to attack initiatives.11
Associated to Tuolumne
In Associated, voters in Livermore enacted an initiative ordinance that prohibited issuance of further residential building permits until completion of sufficient infrastructure for water, sewage disposal, and schools. The trial court ruled the initiative was invalid under Hurst for lack of noticed hearings required under the Government Code to change zoning or impose land use restrictions.12
Overruling Hurst, the Court held that those statutory notice and hearing provisions govern only ordinances enacted by city council action and not those enacted by a vote of the local electorate.13 The court focused on the fact that the right of initiative is “reserved” by the people, not granted to them, and that courts had previously said they had a duty to “jealously guard” this right and to resolve all doubts in favor of its use.14
In direct contradiction to Hurst, the Court therefore held that “Procedural requirements which govern council action . . . generally do not apply to initiatives“.15
The change started by Associated was made more dramatic in DeVita v. County of Napa (1995) 9 Cal.4th 763. There, the voters of Napa County passed an initiative in 1990 that amended the land use element of the county’s general plan and made the re-designation of existing agricultural land and open space conditional on voter approval until the year 2021.
The Court now framed the language in Associated about resolving doubts in favor of the right of local initiative as a presumption in favor of that right. It continued by saying that this presumption is rebuttable only “upon a definite indication that the Legislature, as part of the exercise of its power to preempt all local legislation in matters of statewide concern, has intended to restrict that right.”16
Further, while recognizing that state laws concerning general plans express certain state interests, the Court said, “[I]t is erroneous to assume that a statute or statutory scheme that both asserts certain state interests and defers in other respects to local decision-making implies a legislative intent to bar the right of initiative. Rather, courts must inquire concretely into the nature of the state’s regulatory interests to determine if they are fundamentally incompatible with the exercise of the right of initiative or referendum, or otherwise reveal a legislative intent to exclusively delegate authority to the local governing body.”17
Re-confirming this trend in favor of the right of local initiative, in Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029 the Court held that provisions of CEQA do not apply to land use initiatives proposed by voters, whether the initiative is enacted through a vote of the people or by adoption by the local legislative body in lieu of an election, as permitted by the Elections Code.18 The court noted that CEQA review typically takes months, whereas the procedures under the Elections Code require prompt action on voter initiatives. 19 If prior CEQA review were required, a city could never adopt a voter initiative under section 9214 or 9215 where an initiative had any potential impact on the environment.20
Quoting other cases, the Court said that voter initiatives have been compared to a “legislative battering ram” because they may be used to tear through “the exasperating tangle of the traditional legislative procedure and strike directly toward the desired end.”21
California Cannabis
In California Cannabis22, addressed the issue whether a local initiative to impose an annual fee as a condition of approval to operate a marijuana dispensary had to be placed on the ballot for a general rather than a special election if a portion of the fee were considered a tax. Article XIII C of the California Constitution requires that tax measures be voted on in a general election. The Court issued a sweeping opinion strongly favoring the right of local initiative and seemingly going further even than DeVita.
The test the Court repeatedly articulated, albeit with slight variations throughout the opinion, was stated in one part of the decision as follows: “Without a direct reference in the text of a provision—or a similarly clear, unambiguous indication that it was within the ambit of a provision’s purpose to constrain the people’s initiative power—we will not construe a provision as imposing such a limitation.”23 Finding no such provision in Article XIII C, the Court ruled the initiative should have been placed on the ballot of a special election.
Limitations on California Cannabis
Reading some of the strong language favoring right of initiative in Associated, DeVita and California Cannabis,24 one might conclude that the right of local initiative is nearly absolute. Thus, it is important to note some basic limitations. First, the Constitution itself directly sets some boundaries. For instance, Article XI, Section 7 provides that a city may make and enforce within its limits only local, police, sanitary, and other ordinances and regulations not in conflict with general laws.25 Thus, the local electorate may not adopt an ordinance that purports to have statewide effect.
Second, while the progression from Galvin to California Cannabis shows that the right of local initiative is only rarely constrained by procedural conflicts with general laws, the same cannot be said regarding substantive conflicts. Both DeVita and California Cannabis expressly accept the principle that, after enactment in whatever manner, a local initiative must still not conflict with general laws substantively.26 Thus, for instance, if a General Plan must be internally consistent, the amendment of an element of that plan, whether by the legislative body or the local electorate, must sill result in an internally consistent General Plan.27
The Court has not often explored the distinction between substance and procedure in this area, and almost never explicitly. Reviewing the cases, however, the distinction seems to be this: if a requirement states what local government or the local electorate must do before enacting an initiative ordinance, relates to election procedures, or sets the percentage of the vote required to prevail, the matter is procedural. If, however, it relates to the permissible contents of the ordinance after it is enacted, it is substantive.
Thus, the cases contain the following examples:
Procedural: requirements before passage for a public hearing,28 CEQA review29, Coastal Commission review,30 or a supermajority of the electorate.31
Substantive: substantive requirements set by federal or state constitutional law;32 or state general law, such as the Planning and Zoning law33 or the predatory lending practices law 34 related to the initiative once passed.
Conclusion
The path from Galvin to California Cannabis reveals a complete reversal of the Court’s approach to resolution of the problem of local initiatives that conflict with general laws. Whereas, in Galvin that the local electorate could not or did not comply with the usual procedural requirements for the legislative body to adopt an ordinance meant that the right of local initiative was not available, after Tuolumne, the inability to comply with these procedural requirements meant the right of local initiative was available. Further, after California Cannabis, the Legislature must all but explicitly declare that such procedures are meant to constrain the right of initiative or they do not apply. Today, in most cases, opponents of a local initiative will generally have to argue a substantive rather than a procedural conflict between the initiative and a general law.[35]
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[1] DeVita v. County of Napa (1995) 9 Cal.4th 763, 776; Cal. Const., Art. IV, § 1.
[2] Cal. Const., Art. II, § 1.
[3] Cal. Cost. Art. IV, § 1.
[4] Cal. Const., Art. II, § 8.
[5] See Cal. Const., Art. II § 8, Historical Derivation.
[6] See Galvin v. Board of Supervisors (1925) 195 Cal. 686, 689.
[7] Cal. Const., Art. II, § 11
[8] In another bit of local color, one of the attorneys tangentially involved in the case was A.F. Bray the attorney, and later judge, after whom the Bray courthouse is named.
[9] Cal. Const., Art. XI, § 7.
[10] See Simpson v. Hite (1950) 36 Cal.2d 125, 134.
[11] This article does not attempt to compile a comprehensive list of all challenges that were attempted. However, when it overruled Hurst, the Court opened the floodgates for initiative litigation. The California Supreme Court alone began issuing opinions in this area every five years, on average. See Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 594; Arnel Development v. City of Costa Mesa (1980) 28 Cal.3d 511, 524.); Yost v. Thomas (1984) 36 Cal.3d 561; Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 823-824; Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 511; DeVita v. County of Napa (1995) 9 Cal.4th 763, 785; Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1035; and California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 935
[12] See Gov’t C. § 65853 – 65857.
[13] Associated, supra, 18 Cal.3d at 588. The court expressly did not overrule Galvin, but rather distinguished it, stating that while procedural requirements which govern council action generally do not apply to initiatives, the unusual character of the statute involved in Galvin made it an exception to this rule. (Associated, supra, 18 Cal.3d at 594, fn. 11.)
[14] Associated, supra, 18 Cal.3d at 591.
[15] Id. at 594.
[16] DeVita v. County of Napa, supra, 9 Cal.4th at 776 (emphasis added.)
[17] Id. at 781.
[18] Tuolumne dealt with Elections Code section 9214 (a), (repealed effective 1/1/18), but a similar provision is still found in section 9215.
[19] Id. at 1037.
[20] Id. at 1038.
[21] Tuolumne, supra, 59 Cal.4th at 1035.
[22] California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 935
[23] California Cannabis, supra, 3 Cal. 5th at 931.
[24] DeVita, supra, at 9 Cal.4th at 775 (the right of initiative should be jealously guarded; it is not a right granted to the people but one reserved by them); California Cannabis, supra, 3 Cal.5th at
[25] Cal. Const. Art. XI, § 7.
[26] DeVita, supra, at 9 Cal.4th at 796, fn. 12 (“We emphasize that an initiative amendment must conform to all the formal requirements imposed on general plan amendments enacted by the legislative body. . . . The amendment itself may not be internally inconsistent, or cause the general plan as a whole to become internally inconsistent (Gov. Code, § 65300.5), or to become insufficiently comprehensive (id., § 65300), or to lack any of the statutory specifications for the mandatory elements of the general plan set forth in Government Code section 65302. . . . If a general plan amendment is substantively deficient, then it may be challenged on that basis, and courts have sufficient remedies to correct the problem. . . . When matters of substance rather than procedure are concerned, courts will not employ a double standard for initiative amendments and general plan amendments enacted by the legislative body”); California Cannabis, supra, 3 Cal.5th at 942 (“When a local government lacks authority to legislate in an area, perhaps because the state has occupied the field . . . that limitation also applies to the people’s local initiative power. . . . In contrast, where legislative bodies retain lawmaking authority subject to procedural limitations, e.g., notice and hearing requirements . . . we presume such limitations do not apply to the initiative power absent evidence that such was the restrictions’ intended purpose.”)
[27] Ibid.; see also Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 546-547
[28] Associated, supra.
[29] Tuolumne, supra.
[30] Yost v. Thomas (1984) 36 Cal.3d 561, 564.
[31] Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 251
[32] Legislature v. Deukmejian (1983) 34 Cal.3d 658 (initiative may not adjust state legislative and congressional district boundaries after the Legislature has already engaged in decennial redistricting; more frequent redistricting is constitutionally prohibited).
[33] Lesher, supra.
[34] American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239.
[35] Such a challenge can usually be brought only after, not before, a vote on the initiative. (Costa v. Superior Court (2006) 37 Cal.4th 986, 1006; see also California Cannabis, supra, 3 Cal. 5th at 948.)