Ballot Law Update: Year begins with slew of court actions

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January 25, 2012

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By Tyler Millhouse

Although we have not yet begun to track 2012 ballot measure legislation, January has been far from uneventful for ballot measure law. The new year began with a series of important court actions sure to develop as the year proceeds. In a repeat of 2011, California is again proving itself a battle ground for initiative and referendum law. In our next edition of the update, we plan to resume tracking proposed legislation and will continue to update readers on this month's legal developments.

The Ballot Law Update is released on the last Wednesday of each month. Stay tuned to the Tuesday Count for weekly ballot law news.

Court actions

CA legislative pay lawsuit: On January 24, Democratic lawmakers sued State Controller John Chiang for withholding their pay, saying it violated the separation of powers. Proposition 25 (2010) requires pay to be withheld if the budget deadline is not met and a balanced budget is not passed. The suit does not ask for reimbursement of the pay, but rather seeks to have the court bar the controller from doing it again if legislators approve a budget that they believe is balanced.[1]

Senate President Pro Tem Darrell Steinberg (D) said the controller does not have the power to say if a budget is sound or not, stating, "Neither the governor nor any member of the executive branch may brandish the threat of withholding legislative pay because they disagree with the decisions made by the legislative branch."[2]

  • Chiang's official response can be found here.

Texas traffic camera ruling (Update): After a June 17 district court defeat, proponents of an anti-camera charter amendment in Houston will have a chance to personally defend their initiative. Following the passage of the controversial initiative in 2010, backers of the measure were barred from intervening in defense of the law, leaving city officials (many of whom had expressed opposition to the law) to defend it in court. A legal battle ensued with traffic camera operator/supplier American Traffic Solutions (ATS), and the measure was overturned by the federal district court.

However, on January 24 the Fifth Circuit Court of Appeals reversed the decision to bar the proponents, citing significant revenues from the camera program as evidence of conflicting interests in the city's defense of the law. The court remanded the case for further proceedings.[3]

  • The district court ruling can be found here.
  • The circuit court ruling can be found here.

Wisconsin gubernatorial recall verification: In past recall efforts, Wisconsin's Government Accountability Board has presumed petition signatures valid unless opponents can produce evidence to the contrary. However, after the petitions began circulating in the recall effort against Gov. Scott Walker, his legal team challenged this practice. On January 5, a state court ruled that the GAB must be more proactive in discovering duplicate or fictitious signatures. Walker's attorneys cited, among other things, another recall petition in which the signature "Bugs Bunny" was accepted. Representatives for the board say the cost of checking the signatures, in both time and money, is too high.[4]

WI GAB seeks signature check extension: On January 20, the Wisconsin Government Accountability Board asked a Dane County District Court for an extension to its 31-day window for checking recall petition signatures. On January 17, recall petitioners submitted 1.9 million signatures in recall efforts against the governor and against the lieutenant governor.[5]

Monroe, WA fined for SLAPP: On January 19, a superior court in Washington State imposed fines on the City of Monroe for filing a strategic lawsuit against public participation or SLAPP. The lawsuit was aimed at a 2011 referendum against red light cameras. Judge George N. Bowden found that although the city was right to challenge aspects of the proposed measure, city officials went too far by targeting the advisory portion of the petition. The city was fined $10,000 under the state's anti-SLAPP law. A similar judgment in favor of Bellingham anti-camera activists has since been overturned.[6]

  • Bowden's ruling can be found here.

Virginia primary petition challenge (Update): On December 27, presidential candidate Rick Perry (R) filed suit, challenging Virginia's circulator residency requirement. However, on January 13, a US District Court threw out Perry's lawsuit on the grounds that it was filed too late. The court did, however, acknowledge that Perry would likely have prevailed on constitutional grounds.[7] Perry appealed the decision, but the Fourth Circuit concurred with the lower court on January 17. Unlike the earlier ruling, the decision did not address the constitutionality of the requirement.[8][9] Although Virginia does not permit voters to initiate statewide ballot measures, a ruling in another Virginia petition case  has already had broader implications for ballot measure law.

  • The 4th Circuit's full decision can be found here.

Arizona medical marijuana ruling: After citizens approved a medical marijuana law in 2010, Governor Jan Brewer filed a complaint asking a US district court to determine whether state officials facilitating the new measure would be subject to criminal prosecution. Brewer seemed hopeful that the law would be nullified in light of federal drug statutes.

However, on January 4, the court ruled that the state had not shown that its employees were in danger of prosecution. A threatening letter had been sent by the DOJ. Ultimately, Brewer decided not to pursue the case further. The state will now resume implementation of the law.[10]

  • Brewer's press release on the ruling can be found here.
  • The district court's ruling can be found here.

Oral arguments over CA Prop. 209: In 1996, California voters approved Proposition 209, banning affirmative action in California. Oral arguments in a lawsuit challenging the law will be heard on February 13. The case is focused on overturning the ban with respect to University of California admissions, but could have wider implications. Governor Jerry Brown has intervened in favor of the plaintiffs.[11]

Montana Supreme Court elections: A group of Montana lawmakers are attempting to intervene in defense of LR 119, a legislatively-referred measure scheduled for the June 5, 2012 ballot. In November, a voter group filed suit challenging the proposal which establishes voting districts for Montana Supreme Court justices. The justices are currently elected at-large. The voters claim that the proposed statute actually constitutes an illegal amendment to the state constitution.[12]

  • The ballot language for LR 119 can be found here.

Oklahoma foreign/Sharia law measure overturned: After winning by a landslide in November 2010, implementation of State Question 755 will remain blocked after a decision by the 10th Circuit Court of Appeals. The January 10 ruling reaffirms a lower court's decision to block the controversial ballot measure. In defense of the injunction, the court held that the law inappropriately targets Islam and noted the state's inability to cite any Oklahoma case in which Sharia law had been referenced. The formal challenge of the law's constitutionality will now continue.[13]

  • The tenth circuit's full ruling can be found here.

Washington Campaign Finance Ruling: On December 29, the United States Court of Appeals for the Ninth Circuit struck down a Washington campaign finance law limiting contributions to ballot measures in the final weeks before an election. The law banned any contribution in excess of $5000 within 21 days the general election. However, the court did uphold disclosure requirements on any contributions over $25.[14]

  • The full decision can be found here.

See also