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California Supreme Court:
Proposed Initiative Violates ‘Basic Plan of Government’
Proposition Axed for Seeking to Revise, Rather Than Amend, Constitution
By Kimber Cooley, Staff Writer
The California Supreme Court held yesterday that a proposed ballot initiative—which the drafters sought to have placed as a measure on the November 2024 general election ballot—is improper as it seeks to revise the state Constitution by substantially altering California’s basic plan of government, a task reserved for a constitutional convention or a supermajority of the Legislature.
The initiative, titled the “Taxpayer Protection and Government Accountability Act” (“TPA”), seeks to have any new taxes approved by the voters and proposes striking from, and adding to, the language of the Constitution.
Justice Goodwin Liu authored the opinion for the unanimous court which directs the issuance of a peremptory writ of mandate preventing Secretary of State Shirley Weber from taking any steps to place the TPA on the ballot.
Liu wrote:
“The only question before us is whether the measure may be validly enacted by initiative….[W]e conclude that Petitioners have clearly established that the challenged measure would revise the Constitution without complying with the appropriate procedure. The changes proposed by the TPA are within the electorate’s prerogative to enact, but because those changes would substantially alter our basic plan of government, the proposal cannot be enacted by initiative. It is instead governed by the procedures for revising our Constitution.”
Initiative Measure
On Jan. 4. 1, 2022, Thomas W. Hiltachk (referred to in the opinion as “Proponent”)—an election lawyer who is managing partner of the Sacramento firm of Bell McAndrews & Hiltachk, specializing in the laws governing the initiative process—submitted the initiative to the state.
Sec. 3 of the TPA says that the initiative’s purpose is to enable voters to “reassert their right to a voice and a vote on new and higher taxes by requiring any new or higher tax be put before voters for approval.”
The initiative seeks to accomplish this goal through, among other things, changing the definition of the word “tax” to exclude exempt charges—allowing them to be the subject of referendum—and by requiring that every new tax proposal “be submitted to the electorate and approved by a majority vote.”
The TPA also proposes to enact rollback provisions to allow that “[a]ny tax or exempt charge adopted after January 1, 2022…, but prior to the effective date of this act…is void 12 months after the effective date of this act unless…reenacted…in compliance with the requirements of this section.”
On Sept. 26, 2023, the Legislature of the State of California, Gov. Gavin Newsom, and elector and former Senate President Pro Tempore John Buron, D-San Francisco, filed an emergency petition for writ of mandate, asserting that the proposed initiative is an impermissible attempt to revise the Constitution.
Preelection Review
Liu acknowledged that constitutional challenges to an initiative are typically reviewed after an election but said that preelection review is proper for challenges attacking the authority of the electorate to adopt the proposal in the first place.
He pointed out that Article XVII of the Constitution provides that the electorate “may amend” the Constitution by initiative, but any effort “to revise” the document must proceed by constitutional convention and popular ratification or by submission to the voters from a supermajority of the Legislature.
Applying those principles to the proposal at hand, he reasoned that “[p]etitioners had made a prima facie showing that the TPA would amount to an invalid constitutional revision based on its far-reaching changes to existing processes by which revenue measures are enacted and maintained at the state and local levels.”
Revision or Amendment
Liu noted that in order to qualify as a revision, an initiative must substantially alter the basic governmental framework established by the Constitution.
He explained that “[w]hereas article II reserves to the people the power to amend the Constitution via citizen initiative, article XVIII sets forth the applicable procedures to either amend or revise the Constitution” and that, under these provisions, the initiative power may be used to amend—but not revise—the foundational document.
The justice said that the evaluation of “whether a voter initiative constitutes a valid amendment or invalid revision” must look to the challenged measure as a whole, saying “[w]hile a single provision of an initiative may constitute a revision standing alone…, a proposed initiative may also be revisionary based on its combined effects.”
Rejecting severance as an option for any revisionary elements of the TPA, he said:
“[V]oters who sign initiative petitions understand that their signatures support putting the entirety of the measure before the electorate. Allowing or directing the Secretary to modify the initiative text before it is presented on the ballot may frustrate that intent.”
Tax Power
Liu remarked that “[f]rom the state’s founding, the Legislature has had broad authority to levy taxes” but said that “[i]t is true that starting in the 1970s, a series of initiatives have circumscribed the Legislature’s and local governments’ tax authority, although in different ways.”
Finding none of those initiatives to be comparable to the TPA, he declared that “we have never before considered a voter approval requirement imposed on the Legislature like the one at issue here.”
He remarked that the proposal would “strip the Legislature of authority to promptly raise revenues when necessary” and said:
“The Constitution…directs that the Legislature’s fiscal decisions must be effective immediately. This is particularly important when changes in revenue or appropriations are needed to respond to state or local emergencies.”
Unpersuaded by the assertion that the TPA retains the taxing authority within the legislative branch by simply moving the taxing power from the representative body to the electorate, he concluded:
“[R]equiring any new or higher tax levy to undergo voter approval would significantly alter the existing constitutional balance between direct democracy and representative democracy, with reverberations throughout the framework of our government.” Liu pointed out that the TPA would shift power between the executive and legislative branches by amending Article XIII “to require a two-thirds vote not just on any ‘state statute’ effecting such a change, but on any ‘state law’ doing so” and that “[t]he TPA makes clear that ‘state law’…would include executive and agency actions.”
Reasoning that the TPA “would significantly rework the current balance between legislative and executive functions at the state and local level,” he wrote:
“[T]he Legislature today is authorized to decide whether to set certain fees itself or to delegate the task to various agencies. Under the TPA, the Legislature would be stripped of that authority and would instead be tasked with considering and voting on a multitude of fees currently set by agencies.”
He also noted that:
“[T]he TPA would expand the referendum power to encompass all fees imposed by state and local agencies. As a result of its new definition of ‘tax,’ the TPA would narrow the tax exception to the referendum power set forth in article II, section 9 of the Constitution and would exclude every newly defined ‘exempt charge’ from the referendum exception.”
Initiative Tax Decisions
Liu explained that the TPA would amend Article XIII §2 to require that the two-thirds voter approval rule to apply to taxes submitted to the electorate by initiative and would also prohibit local governments from proposing a local tax in a charter city as a majority vote charter amendment.
He said:
“Taken together, these provisions of the TPA transform local revenue-raising by requiring that exempt charges go through legislative rather than administrative processes. For example, a local utility would no longer be able to adjust rates without a local governing body passing an ordinance, and a community center would no longer be able to impose user fee charges for facility rentals without engaging in a legislative process.”
He concluded that “[t]he TPA would shift so much authority, in such a significant manner, that it would substantially alter our framework of government.”
The case is Legislature of the State of California v. Weber, 2024 S.O.S. 1928.
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