Wednesday, May 18, 2011

Supervisor Wiener: City Hall knows best


Supervisor Wiener apparently learned at Harvard Law School that voters aren't qualified to have the last word on public policy. After all, they are kind of dumb and few of them have Harvard degrees. Wiener thinks the iniative process is "cumbersome" and lacks "substantive involvement" by the city, as if the whole point of signature-gathering initiatives isn't to do an end-run around the "involvement" of City Hall! Wiener is proposing a charter amendment (the text is below the public comment by Miles) to give the mayor and the board of supervisors the right to amend or repeal voter-approved iniatives, because City Hall knows better than We the Rabble.

FROM: 
Mary Miles (SB #230395)
Attorney at Law for Coalition for Adequate Review

TO: 
Angela Calvillo, Clerk, President David Chiu, and
Members of the San Francisco Board of Supervisors
City Hall, #1 Dr. Carlton B. Goodlett Pl.,
San Francisco, CA 94102

DATE:  May 18, 2011


Attn: Rules Committee Members, Sean Elsbernd, Mark Farrell, and Jane Kim

Re:  BOARD OF SUPERVISORS File No. 110401 [Charter Amendment Allowing Amendments to or Repeals of Initiative Ordinances and Declarations of Policy]

Rules Committee Agenda of May 19, 2011, Item No. 6

PUBLIC COMMENT 

This is public comment on the proposed Charter amendment allowing the Board of Supervisors and/or Mayor to amend or repeal initiative ordinances and declarations of policy passed by voters. The proposed Charter Amendment is scheduled for hearing before the Rules Committee on May 19, 2011, Item No. 6.

The proposed Charter amendment claims that the constitutional right  to voter initiatives is a “cumbersome system” that only “encourages more and more initiatives” and should be removed from the voters by enabling the Board of Supervisors and/or Mayor to repeal and amend voter-approved initiatives and to legislate expiration dates for voter-approved initiative measures.

The proposed amendment violates the spirit and letter of the California Constitution, which states: “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” (Cal. Const. art. II, §§1) This power is not a right granted to the people, but is a “power reserved by them.”  (DeVita v. County of Napa [“DeVita”] (1995) 9 Cal.4th 763,775-776, emphasis added; and see, United States Constitution, Preamble) Courts liberally construe this power to protect the right of the people to local initiative or referendum. (DeVita, supra, 9 Cal.4th at p. 776) 

No authority permits the Board of Supervisors and/or the Mayor to repeal, amend, or place time-based expirations on ballot initiatives passed by the voters. To do so would negate the powers vested in the people by the Constitution.

In fact, the California Elections Code section 9125 expressly provides that no initiative measure can be repealed “except by a vote of the people, unless provision is otherwise made in the original [initiative] ordinance.” In affirming the force of this provision, the California Supreme Court has explained that Elections Code section 9125 “has its roots in the constitutional right of the electorate to initiative, ensuring that successful initiatives wil not be undone by subsequent hostile boards of supervisors.” (DeVita, supra, 9 Cal. 4th at p. 788, 797)  The Court emphatically declined to place limitations on the right to voter initiative, even though “all initiatives place limits on a government body’s capacity to legislate in areas that are otherwise statutorily authorized, some of those limitations quite severe.” (Id., emphasis in original)

The proposed Charter Amendment is also preempted under the California Constitution article XI section 7, since it conflicts with state law, the California Constitution, and the United States Constitution. Both proposing this Charter Amendment and voting for it are violations of ethical duties that subject a public official to discipline and/or removal from office for willful misconduct, including failure to perform duties in compliance with the law. (SF Charter §15.105) 

The Board should decisively reject the proposed Charter amendment as an unprincipled attempt to usurp the fundamental rights of the electorate that are the foundation of democratic government.

Please place a copy of this Comment in all applicable files.

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17 Comments:

At 9:25 AM, Anonymous Anonymous said...

David Chiu on Polk Street - "we want the city's first protected bike lane to be on Polk Street". John Avalos tried to one up Chiu at the Bike to Work Day Press Conference in terms of his bike love. They were all outdone by Mayor Lee. The problem in the Mayor's race is that ALL the candidates are in the bag for bikes. If you want the Mayoral election to be a referendum on bikes, your problem is there is no box where we can vote against! Rob - please consider a run for Mayor so the voice of reason can be heard!

 
At 10:22 AM, Blogger Rob Anderson said...

It's still early in the campaign, and there are a lot of candidates already. All it takes is one candidate to begin raising these issues to allow "the voice of reason" to be heard!

 
At 11:37 AM, Anonymous Anonymous said...

“All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” (Cal. Const. art. II, §§1) This power is not a right granted to the people, but is a “power reserved by them.”

This is a charter amendment itself, which will be voted on by the people. So the people themselves will be deciding to alter the structure, not Scott Wiener. Am I missing something?

 
At 4:35 PM, Blogger Rob Anderson said...

Yes, you're missing this obvious question: Why put undermining the people's initiative rights on the ballot at all? Because he thinks that he and the elitist twits in City Hall know better than the unwashed mob of city voters. After all, they all didn't go to Harvard like he and David Chiu did.

 
At 4:38 PM, Anonymous Anonymous said...

Don't worry. The City will never vote on this. The righteous such as yourself with be raptured away on Saturday and Gomorrah and all its cyclists will explode on Oct 31.

 
At 6:47 PM, Anonymous Anonymous said...

So we get May 21st to Oct 31st with no Rob? That's heaven enough right there.

 
At 7:28 PM, Blogger Rob Anderson said...

I'm the only consistent media critic you jerks have, and you can't even handle that. No comment on Wiener's attempt to undermine our initiative rights? Let me guess: you think it's a good idea.

 
At 7:31 PM, Anonymous Anonymous said...

You aren't any part of the media. Don't kid yourself.

 
At 8:33 PM, Blogger Rob Anderson said...

Then why are you reading me?

 
At 8:40 PM, Anonymous Anonymous said...

Because you are a sad joke of an old man who's time has past. Why do people watch a train wreck?

 
At 8:45 PM, Blogger Rob Anderson said...

Right. But why are you trying lamely to insult me under cover of anonymity? Why not make a substantive comment on the post? Because you're both chickenshit and have nothing to say.

 
At 9:57 PM, Anonymous Anonymous said...

Fight on Sir Robert! Fight on!

Run for Mayor and lead us all the promised land. It'll be a city wide vote so you can't hide behind district elections, that's why you won't. You are the chicken shit.

And why would anyone use their real name to comment on this crap?

 
At 8:41 AM, Blogger Rob Anderson said...

There are already more than a dozen candidates for mayor. All it takes is one them to raise the important traffic and development issues to provide city voters with a real debate.

If an issue is worth commenting on and you have something worth saying, why not put your name on your opinion? To ask the question is to answer it.

 
At 10:20 AM, Anonymous Anonymous said...

Every candidate for mayor supports and wants to expedite the bike plan. All sitting supes support the bike plan (even Mark Farrell was out on BTWD).

Again I ask, how is it that EVERYONE is wrong except you?

 
At 12:14 PM, Blogger Rob Anderson said...

In the land of the blind, the one-eyed is king.

 
At 6:08 PM, Anonymous Daviator said...

I actually think that Scott Wiener is right, though I'm not sure that I agree with the proposed initiative.

Many of the initiatives and charter amendments that are put before the voters are complex and poorly understood by many, if not most, voters. Ballot propositions are often worded in a misleading or confusing way. And many initiatives, once passed, are untested and their true results and efficacy may only be known in time. We do often find ourselves being asked to vote on propositions to fix problems created by propositions we have approved in the past. A great example might be Prop G that was passed last year to reverse much of the effect of a previous MUNI reform measure that had not resulted in the desired effects.

I personally think that the initiative process is overused, and wish our elected officials would make tough decisions instead of punting them to the ill-qualified voters when it's more politically expedient to do so. (I'm not saying that voters are dumb, just that the complexity of a lot of these things makes it unlikely that most people will educate themselves enough to make a truly informed choice.)

So honestly, I think that a limited ability for our legislators to "tweak" voter-approved measures wouldn't be such a bad thing, at least in a perfect world. The issue for me is whether we can TRUST them to use that power responsibly. My fear is that down the line, supervisors would try to defeat the intended purpose of a voter-approved law rather than just make changes to improve its workability in some way.

So that's what it comes down to for me. If I trusted the Board of Supervisors to use this newly-granted power ethically and in accordance with the spirit and intent of the original legislation, I'd be all for it. But as it is, I'm wary.

 
At 8:48 AM, Blogger Rob Anderson said...

No, we can't trust the board of supervisors to do the right thing on a single issue. They've been awful on every important issue facing SF, especially the bike bullshit, traffic in general, and on development that threatens every city neighborhood near a major Muni line. The notion that somehow we need this board---or any board, for that matter---to "tweak" a fundamental right like this is ludicrous.

If the BOS votes to put Wiener's proposition on the ballot, it will surely be litigated, and the city will lose, since the courts won't allow it to water down our constitutional rights.

 

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