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 initiative 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 to give the mayor and the board of supervisors the right to amend or repeal voter-approved initiatives, because City Hall knows better than We the Rabble.

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

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


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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