California is now facing a Constitutional crisis, and land use issues in Monterey County are right at the center. A decision by Judge Ware, of the Federal District Court, has led to the effective suspension of the initiative and recall powers reserved to the people in the California Constitution. It appears the decision will also prevent the use of the people’s right to the referendum.

The Monterey County Board of Supervisors has already used the Judge’s decision as an excuse to remove the Rancho San Juan referendum from the June ballot, thus denying the people the right to vote on the largest and most controversial land use project ever approved in the history of Monterey County.

The Board’s action on the Rancho San Juan referendum (unlike the Board’s action on the Community General Plan Initiative) was not taken in response to a lawsuit or a Court order. Without any specific legal justification, and with only Supervisor Potter dissenting, the Board simply used the Judge’s decision (made in a different case) as their excuse to remove a fully-qualified voter referendum from the ballot. That means the voters won’t get to vote in June, and the developer gets the green light to do his project (no matter what the people might have voted). Below you will find links to some of the key documents. I’ll have more on this topic tomorrow.

For KUSP, this is Gary Patton.

More Information

Professor Richard Hasen’s Election Law Blog
http://electionlawblog.org/

Judge Ware’s Decision
http://www.landwatch.org/pages/
alerts/040306decisionnews.html

LandWatch Action Alert on Election Law Crisis
http://www.landwatch.org/pages/
alerts/040306decisionalert.html

California State Constitution
http://www.leginfo.ca.gov/const.html

Key Constitutional Provisions
http://www.leginfo.ca.gov/cgi-bin/waisgate?waisdocid=5091747016+0+0+0&waisaction=retrieve

LandWatch Attorney’s Letter to Monterey County Counsel
http://www.landwatch.org/pages/
issuesactions/countyplan/021006mckee.pdf

The Constitutional crisis I spoke about yesterday is directly connected to Monterey County land use controversies, but it affects the entire state. You can get links below to a number of documents discussing how one Judge’s interpretation of the Federal Voting Rights Act has now managed to supersede the provisions of the California Constitution that guarantee the right of the people to maintain popular control over their elected officials.

I particularly recommend you read a letter by Richard Hasen, the William H. Hannon Distinguished Professor of Law at Loyola Law School. Professor Hasen has had no contact whatsoever with any of the parties involved in the Community General Plan or the Rancho San Juan issues in Monterey County. He comes from the “academic” world, not the “political” world, and yet he felt compelled to write to the Ninth Circuit Court of Appeals when he learned about what was happening in Monterey County. Professor Hasen’s compelling letter urges the Court not to allow Judge Ware’s decision effectively to veto the initiative, recall, and referendum provisions of the State Constitution, which is the practical effect of what Judge Ware did. So far, unfortunately, the Ninth Circuit doesn’t seem to care that the right of the people to vote directly on key policy decisions has essentially been made “inoperative” by Judge Ware’s decision. I’ll have some other thoughts tomorrow.

For KUSP, this is Gary Patton.

More Information

Professor Richard Hasen’s Election Law Blog
http://electionlawblog.org/

Judge Ware’s Decision
http://www.landwatch.org/pages/
alerts/040306decisionnews.html

LandWatch Action Alert on Election Law Crisis
http://www.landwatch.org/pages/
alerts/040306decisionalert.html

California State Constitution
http://www.leginfo.ca.gov/const.html

Key Constitutional Provisions
http://www.leginfo.ca.gov/cgi-bin/waisgate?waisdocid=
5091747016+0+0+0&waisaction=retrieve

LandWatch Attorney’s Letter to Monterey County Counsel
http://www.landwatch.org/pages/
issuesactions/countyplan/021006mckee.pdf

Federal Court Judge James Ware, in a lawsuit challenging the Monterey County Community General Plan Initiative, decided that the initiative petition was invalid, even though it had been approved in advance by Monterey County, as to form, and had been signed by more than enough registered voters to qualify it for the ballot. According to Judge Ware, provisions in the Federal Voting Rights Act required that the petition be circulated in Spanish. There was no law that said that (and in fact, the law said the opposite) and there was no real court precedent, either, involving initiatives.  However, whether Judge Ware was correct or not (and that will ultimately be decided on appeal) the most important thing he did was to direct the removal of the initiative from the ballot.

Let’s be clear, this wasn’t the Judge’s only choice. He could have let the voters vote, and then if the initiative passed, it would become law only if the Judge’s decision saying it was illegal was overturned on appeal. The way the Judge did it, the voters have no right to express themselves on the General Plan, even though they did everything they possibly could to secure themselves the right to vote directly on the General Plan issue. As pointed out by Loyola Law School Professor Richard Hasen, this ruling is now being applied up and down the state, to keep recall, referendum, and initiative measures off the ballot. The same arguments will apply to statewide measures. In essence, while the courts are debating some very difficult legal questions, the voters are shut out.

For KUSP, this is Gary Patton.

More Information

Professor Richard Hasen’s Election Law Blog
http://electionlawblog.org/

Judge Ware’s Decision
http://www.landwatch.org/pages/
alerts/040306decisionnews.html

LandWatch Action Alert on Election Law Crisis
http://www.landwatch.org/pages/
alerts/040306decisionalert.html

California State Constitution
http://www.leginfo.ca.gov/const.html

Key Constitutional Provisions
http://www.leginfo.ca.gov/cgi-bin/waisgate?waisdocid=
5091747016+0+0+0&waisaction=retrieve

LandWatch Attorney’s Letter to Monterey County Counsel
http://www.landwatch.org/pages/
issuesactions/countyplan/021006mckee.pdf

The California Constitution provides the people with the right to “second guess” the decisions of their elected representatives. They can do this through a “referendum,” subjecting a specific decision to a vote of the people. Or, they can do this through an “initiative,” and directly enact the laws they want to enact. The people also have a Constitutional right to “recall” an official whom they believe is not doing a good job.

Naturally, elected officials do not like the idea of being “reversed” by the voters, and they don’t like the idea of having the voters directly enact laws through the initiative process, since that takes control away from the elected officials. The Monterey County Board of Supervisors, however, is an extreme case of this dislike of direct democracy. When the voters qualified a referendum on Rancho San Juan, the Board simply modified the project and approved it again, the day before the referendum election. 75% of the voters voted against the first project, and then immediately qualified a second referendum petition, on the second approval. It’s this second referendum that the Board has now removed from the ballot, with no specific Court order or lawsuit requiring that. If the Board is able to give the developer the green light, and vested rights, and the voters never get their say, our democratic form of government will have been defeated. Unfortunately, this is exactly the situation now faced by citizens in Monterey County, and throughout the state.

For KUSP, this is Gary Patton.

More Information

Professor Richard Hasen’s Election Law Blog
http://electionlawblog.org/

Judge Ware’s Decision
http://www.landwatch.org/pages/
alerts/040306decisionnews.html

LandWatch Action Alert on Election Law Crisis
http://www.landwatch.org/pages/
alerts/040306decisionalert.html

California State Constitution
http://www.leginfo.ca.gov/const.html

Key Constitutional Provisions
http://www.leginfo.ca.gov/cgi-bin/waisgate?waisdocid=
5091747016+0+0+0&waisaction=retrieve

LandWatch Attorney’s Letter to Monterey County Counsel
http://www.landwatch.org/pages/
issuesactions/countyplan/021006mckee.pdf

If you’ve been listening all week, you’ve noticed that I have been preoccupied with what I think of as a “Constitutional Crisis,” centered in Monterey County. Well, the weekend is coming up, so let me drop the political theory, and let go of my worry beads, and announce some more of those “get out of doors” activities that you might enjoy.

Tomorrow and Sunday, you can either day hike or backpack into Laguna Creek and The Gorge, in San Benito County. The Federal Bureau of Land Management and the Sierra Club are overseeing an expedition that will involve some minor trail maintenance. Camping is primitive, and you can do it in one day, if you prefer. BLM botanist Julie Anne Delgado is leading the group, and you can get her contact information below.

Next weekend, on Saturday April 22nd and Sunday April 23rd, you can walk on the Brazil Ranch, in scenic Big Sur. This is a Wildflower Hike and Floristic Survey. The Brazil Ranch is a 1200-acre property acquired by the U.S. Forest Service a few years ago, and is located on the coast a few miles north of the Little Sur River and adjacent to Bixby Creek. Forest Service staff will be writing a vegetation management plan for the ranch in 2006, and want help in developing baseline data. If you’d like to participate, contact Bruce Delgado. His information is also available on the KUSP website.

For KUSP, this is Gary Patton.

More Information

For information on the San Benito County trip contact BLM botanist Julie Anne Delgado at: jdelgado@ca.blm.gov, or by telephone at: 831-630-5028. Her cell phone is: 831-586-6012.

For information on the Brazil Ranch Wildflower Hike and Floristic Survey, contact Bruce Delgado at bdelgado@mbay.net or by telephone at: 831-384-1376.