Monday, January 04, 2016

Howard Jarvis Taxpayers Ass'n v. Padilla (Cal. Supreme Ct. - Jan. 4, 2016)

The California Supreme Court begins 2016 with a surprise.  At least to me.

In 2014, the California Legislature put Proposition 49 on the ballot, which sought an opinion from the voters as to whether Congress should propose (and the Legislature ratify) an amendment to the U.S. Constitution that would overturn Citizens United.

Fair enough.  But in August 2014, the California Supreme Court took Prop. 49 off the ballot.  Didn't decide the merits.  But pending resolution, the thing went off.

Most people -- including myself -- thought that gave a pretty good indication of where the California Supreme Court was going to eventually go once it issued an opinion.

But today, the California Supreme Court decides, over a single dissent, that Proposition 49 would have been perfectly fine.

There's admittedly a split of opinion even amongst those justices who are on board for the result.  But the outcome is nonetheless not much in doubt.

Justice Werdegar authors the first opinion.  An opinion that gets five votes:  hers, as well as the Chief Justice's and Justice Corrigan, Cuellar, and Kruger.

That's five.  Which is pretty much all you need to know.

It takes 46 pages for Justice Werdegar to spell out all the reasons why.  But spell them out she does.  The majority says that it's perfectly fine for the Legislature to request an advisory opinion as to what the Legislature should do.  Including but not limited to Prop. 49.

Chief Justice Cantil-Sakayue writes a brief concurrence as well.  Her vote wasn't a surprise; after all, she dissented from the stay on Prop. 49 back in 2014.  But she spells out additional thoughts as well.

For 39 pages.  Which makes one think that maybe her opinion might have been originally intended to be a (proposed) majority opinion.  Or at least that she feels like letting everyone know her complete views on the matter.

Then there's Justice Corrigan.  Who writes a separate concurrence that gives one substantial reason to think she may well have changed her mind.  And/or changed her vote.  Her concurrence begins:\

 "With the benefit of time to fully consider the issues presented by this writ petition, which go to the fundamental structure of our state government, I agree with and join the majority opinion. Proposition 49 is a valid exercise of the Legislature’s investigatory authority under the California Constitution. I also agree with the Chief Justice that the Legislature’s power to submit advisory measures to the electorate is not limited to its role in the process of amending the federal Constitution. For the reasons stated by the Chief Justice, advisory measures that are reasonably related to any proper use of legislative power are permissible."

So she's reluctant, but in the end, what Justice Werdegar and Chief Justice Cantil-Sakayue say seems right to her.

At this point, anyway.

Then there's Justice Liu.  He didn't join the majority opinion.  But agrees with the result.  He writes separately to let you know that he thinks the majority opinion is too broad.  He's on board for Prop. 49 since it concerns the People's potential support for a federal constitutional amendment.  That's a proper subject for an advisory opinion, he says.  But he wouldn't be on board for similar advisory measures about other potential matters.  That's too much for him.  And he explains why.  At length.

Which leaves only Justice Chin.  Who dissents.

So, in the end, you've got a majority of the California Supreme Court voting to put a hold -- and a dispositive one -- on what would have otherwise been a matter submitted to the voters in 2014.  But, less than two years later, you've got virtually every single justice agreeing that the proposition at issue was perfectly fine.

Not something you see very often.  Or that, in my view, was entirely predictable.

Admittedly, you've got a couple new members of the Court, both of whom join the majority opinion.  Sometimes new blood introduces new thoughts.  And it always introduces new votes.  As here.

Still, what transpired here is a titanic shift.  If you'd have asked me in 2014 if the ultimate vote on Prop. 49 would have been 6-1 to uphold the thing, I'd save said "No way.  No way in hell."

Shows you what I know.