BOLING v. PUBLIC EMPLOYMENT RELATIONS BOARD

Amicus Curiae Brief of Pacific Legal Foundation, Howard Jarvis Taxpayers Association, and National Tax Limitation Committee

Cal.November 28, 2017

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA No. 8242034 CATHERINE A. BOLING; T.J. ZANE; and STEPHEN B. WILLIAMS; Petitioners, SUPREME COURT . FILED PUBLIC EMPLOYMENT RELATIONS BOARD, NOV 2 8 2017 Respondent, Jorge Navarrete Clerk and CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION; DEPUTY CITY ATTORNEYS ASSOCIATION; AMERICAN FEDERATIONOF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127; and SAN DIEGO CITY FIREFIGHTERS LOCAL 145, Real Parties in Interest. Deputy After an Opinion by the Court of Appeal, Fourth Appellate District, Division One, Consolidated Case Nos. D069626 and D069630 APPLICATION TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION, HOWARD JARVIS TAXPAYERS ASSOCIATION, AND NATIONAL TAX LIMITATION COMMITTEE IN SUPPORT OF REAL PARTYIN INTEREST CITY OF SAN DIEGO MERIEM L. HUBBARD,No. 155057 HAROLDE. JOHNSON,No. 200392* *Counsel ofRecord Pacific Legal Foundation 930 G Street Sacramento, California 95814 Telephone: (916) 419-7111 Facsimile: (916) 419-7747 E-mail: mhubbard@pacificlegal.org E-mail: hjohnson@pacificlegal.org Attorneysfor Amici Curiae Pacific Legal Foundation, etal. TABLE OF CONTENTS TABLE OF AUTHORITIESWu...ce ccecccessssesssessesecnecseesessecscseseeecssscecsseeseeas 3 INTRODUCTION 0.0 cceecceesecescsceseeecesssessessecesecssssesecseesssssesscseseseaaeneres 6 APPLICATIONTO FILE BRIEF AMICUS CURIAE...........cccccessseeeeeees 6 IDENTITY OF AMICIoccceceescscscessesseessscessecsesstesesscsscsecsssessusecesecenees 6 BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION, HOWARD JARVIS TAXPAYERS ASSOCIATION, AND NATIONAL TAX LIMITATION COMMITTEE IN SUPPORT OF REAL PARTY IN INTEREST CITY OF SAN DIEGO.W......cccececceeesesesesssceeseseeeees 9 INTRODUCTION AND SUMMARYOF ARGUMENT...........cccccceeeeeee 9 ARGUMENT oocciieccececceseceeceseenessenesesseessessesssseseeseeseeecsessssassesescevssenseaers 12 PERB SUBVERTED THE PEOPLE’S RIGHTS BY BURDENING THE CONSTITUTIONALLY GUARANTEED INITIATIVE PROCESS WITH STATUTORY RESTRICTIONS THAT HAVE NO APPLICATION......eecceccesssssscsseesenssseseeseecescesssscesseeeens 12 I. The Citizens’ Initiative Allows the People To Exercise Their Reserved Legislative Powers by Engaging In Direct Participatory Democracy Without Interference by Governmentor Special Interests...... 13 If. PERB Undermined the People’s Rights of Direct Democracy by Grafting the Statutory “Meet and Confer” System OntotheInitiative Process in Some Cases, Allowing Interference by Bureaucrats and Special INCCTESESeeeeee ste ceeeeeseecenesseecseesessesseesesneesseseessseeeessssecsessessesicssessecacens 15 HI. PERB Grafted the “Meet and Confer” System Ontothe Initiative Process Even Though There Was No Statutory Warrant for Doing So, as Required by the Rule Articulated In Uplandd.o...c.cccccccceccscsecsesstsesscesetssensees 17 IV. PERBViolated the Constitution and the Rights of San Diego Voters by Refusing To Treat the CPRI as a Citizens’ Initiative Merely Because the Mayor Actively Supported It...cccessessssscesseseesecescsssssessesssssssesseeaeesseees 20 CONCLUSIONoooeccceceeececceesesssesseseseeseesessssessesesscsesesessseecssaceseesens 24 CERTIFICATION OF COMPLIANCE.......cccccccssessesecsessescessssssesssevesseeees 25 DECLARATION OF SERVICE BY MAIL .......cccccccssssssssssesessssvecsesseseecees 26 TABLE OF AUTHORITIES Cases AmadorValley Joint Union High Sch. Dist. v. State Bd. ofEqualization, 22 Cal. 3d 208 (1978) ....ceccccsessscesesscecssssesesssteeseststacsvsseseseeseceuseaes 13, 15,16 Associated Home Builders ofThe Greater Eastbay, Inc. v. City of Livermore, 18 Cal. 3d 582 (1976) 0... cecsesessssssssesscscsessceeeees 10, 14, 19, 23 Boling v. Public EmploymentRelations Board, 10 Cal.App. Sth 853 (2017) ...ccccccccccccscssssesecsseceeeesessessecesseseseeeveseses 9,21 Building Industry Association ofSouthern California v. City ofCamarillo, Al Cal. 3d 810 (1986) ooo. eececcccccecssescsesescescacstsnseeverstessesacatsesasessreeseeees 16 California Cannabis Coalition v. Upland, 3 Cal. 5th 924 (2017)... eccccsecsssccssescescsssssstscssscsesecescsestseeacseses 11, 18, 19, 23 Coalitionfor Econ. Equity v. Wilson, 946 F. Supp. 1480 (N.D. Cal. 1996), vacated, 122 F.3d 692 (9th Cir, 1997) occccccseccssseseessssescsessesesssseceseees 7 Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128 (Qth Cir. 2012)...cecececcsccsssscsssessceseseseesaesssesesecsessetecececes 7 Connerly v. State Pers. Bd., 92 Cal. App. 4th 16 (2001)... cceccccccsscesscsscecessessscscscsceussesesssasecseseseceeees 7 Coral Constr., Inc. v. City & County ofSan Francisco, SO Cal. 4th 315 (2010)... eeecccecccsesescssssscscssssesssssnsvsteresasacatatacacscecsrcsssesees 7 Hi-Voltage Wire Works, Inc. v. City ofSan Jose, 24 Cal. 4th 537 (2000)... eeecsescsecscsssscsesescscevsesssavacececsrsesucassesesavacessseesecees 7 Howard Jarvis Taxpayers Ass’n v. City ofLa Habra, 25 Cal. 4th 809 (2001)... eeeesecscsscsescscscsesssesecstsssavsesesesseessatatstarsceseeesesseees 9 Howard Jarvis Taxpayers Ass’n v. City ofSalinas, 98 Cal. App. 4th 1351 (2002)...cccccccccceessssssecesecesesessesacsssesescecessvensecees 9 Howard Jarvis Taxpayers Ass'n v. County ofOrange, 110 Cal. App. 4th 1375 (2003)... ccccccccscssssescsssseecscecerescescscsesecececsseereeees 9 Howard Jarvis Taxpayers Ass'n v. State Bd. ofEqualization, 20 Cal. App. 4th 1598 (1993)...ec esscscsssssssssssscsscessccecessessesessscevsceseeees 9 Howard Jarvis Taxpayers Ass’n v. City ofFresno, 127 Cal. App. 4th 914 (2005)... cecscsssscstsescscsscetscceecesssesassecscecscsuveees 9 Kennedy Wholesale, Inc. v. State Bd. ofEqualization, 53 Cal. 3d 245 (1991) oo ececcccesccsccsssscssesescsssssesseassesssaesacesssateseeacavecesesses 17 Legislature v. Eu, 54 Cal. 3d 492 (1991) ooo ccccccccecscssseccessscssessssscessetseesessesaeseseees 7, 14, 21 Pension Obligation Bond Committee v. All Persons Interested, 152 Cal. App. 4th 1386 (2007) o.....cceccccccscsssescscesesecaesecessacssssseses 6, 23 People ex rel. Seal Beach Police Officers Ass’n v. City ofSeal Beach, 36 Cal. 3d 591 (1984) ooo eeccccccsscscscsssecssssestsvessssecscseceessateussesatacees 18, 19 Perry v. Brown, 52 Cal. 4th 1116 (2011)eccceccsscscsscssececscsecesssseessecsessesessesessees 6, 22 Rossi v. Brown, 9 Cal. 4th 688 (1995) ooo. ececcccsccscssseesessscsessesssssesseveveceeveasseessaeesetens 13, 19 Spencerv. City ofAlhambra, 44 Cal. App. 2d. 75 (1941)... eccccccccesssescscessstssscsssesscseseresssessaerseseessceees 13 Votersfor Responsible Retirementv. Bd. ofSupervisors ofTrinity County, 8 Cal. 4th 765 (1994) ooo cccccesccscssessssesesssscscsssssssaceesecerssetsassssacscecscesses 19 Constitution Cal. Const. art. 1, § 31 oo. eeceecccccscescseesssscesescsssssscsvsessseceeversesesesassesesasssscavsesees 7 Cal. Const. art. IL, § 1 oo. ceeccccccsccsesecesssesecscsscsvsvscseseneesevsseassasssevscsesssseseneee 10 Cal. Const. art. UL, § 8 ..ccccceccccccccssccsscecsscssssesssssesesessssssaseseesssecesseseceees 13, 14 Cal. Const. art. UL, § 8(a)....:ccccccccccsscsssessecesssccesssessacssssacatsscesecssesesecsevees 11, 20 Cal. Const. art. 1D, § 9 oo. eeecccccsescsccseessceseecsssssssssscssssssseccassesecssseeaseessseaseesees 19 Cal. Const. art. IL, § 10(C) 2... ccccccessesssscscsscssssessssesscsecaceceseeatcasassceesece 14,15 Cal. Const. art. [V, § 1 o.ceecccccssscscesceccscsstssesvscsssseevsssesarsesscstssavausacesssseeseees 10 Cal. Const. art. XVI, § Love cccccceescccccessscscescssssesscessesecsssssssesessessssessvaresetesees 6 Statute Meyers-Milias-Brown Act MMBA, Gov’t Code § 3500,ef seq. ..eseecesessess 10 Rule Cal. Ct. R. 8. 520(£)(2) oo. eeeescssssssssssscescscscsssssscsessssssacsssavssaeeesaesassesseacascavevesece 6 Other Authorities Carrillo, David A. & Shanske, Darien, California Constitutional Law: Interpreting Restrictions on the Initiative Power, 31 ULC. Davis L. Rev. 65 (2017) voceeecccscsssssscscesesssscesecceseeceececes. Goode, Stephen, A Formulafor Cutting Government Spending, beceeneeeees 18 Insight on the News, Vol. 15, at 21 (June 7, 1999)... ceesecscsseccssseeees 8, 20 Gordon, Tracy M., The Local Initiative in California, Public Policy Institute of California (2004) .....cccccccscscesssescecesees Grodin, Joseph R., The California State Constitution: A Reference Guide seeeeeeeees 13 (GreenwoodPress, 1993) ......c.cccccesescssesestssseseseesseseesseusecsesesecseececece. 14,15 Manheim,Karl & Hopper, EdwardP., A Structural Theory ofthe Initiative Powerin California, 31 Loy. L.A. L. Rev. 1165 (Jume 1998) ooo ccccsescseccescesseceseceees Swatt, Steve, Game Changers: Twelve Elections seceeeeeenes 15 That Transformed California (2015)...c.cccceceescscsessssssssseesessceseeseseseeeee. 8, 21 INTRODUCTION APPLICATIONTO FILE BRIEF AMICUS CURIAE Pursuant to California Rules of Court Rule 8.520(f)(2), Pacific Legal Foundation, Howard Jarvis Taxpayers Association, and National Tax Limitation Committee request permission to file the accompanying brief in support of Real Party in Interest City of San Diego. IDENTITY OF AMICI Pacific Legal Foundation (PLF) is a nonprofit public interest legal organization that litigates for limited government, property rights, individual rights, and free enterprise. Founded in 1973 and headquartered in Sacramento, PLF hasa longhistory ofparticipating in legal actions to defend the electorate’s use of the initiative and other constitutionally guaranteed instruments of direct democracy to enforce limits on government power, foster restraint in taxation, spending, and borrowing, and upholdprinciples of equal rights. For instance, in Pension Obligation Bond Committee v. All Persons Interested, 152 Cal. App. 4th 1386 (2007), PLF successfully defended voters’ rights, under Cal. Const. art. XVI, § 1, to have the direct, final say on major long-term borrowingbythestate. In Perry v. Brown, 52 Cal. 4th 1116 (2011), PLF submitted amicus arguments in support of the right of initiative sponsors to represent their measures against legal challenges. PLF has also been the leading litigator to defend and enforce Proposition 209 (Cal. Const. art. I, § 31), the citizens’ initiative that bars discrimination and preferences in governmentcontracting, employment, and education on the basis of race, ethnicity, or sex. See, e.g., Coral Constr., Inc. v. City & County ofSan Francisco, 50 Cal. 4th 315 (2010); Hi-Voltage Wire Works, Inc. v. City of San Jose, 24 Cal. 4th 537 (2000); Connerly v. State Pers. Bd., 92 Cal. App. 4th 16 (2001). PLF hasalso representedinitiatives’ sponsors to defend their measures againstdirect legal challenge. See, e.g., Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128 (9th Cir. 2012) (representing Proposition 209 sponsor Ward Connerly and American Civil Rights Foundation to defend Proposition 209 against a federal Equal Protection challenge); Coalition for Econ. Equity v. Wilson, 946 F. Supp. 1480 (N.D. Cal. 1996), vacated, 122 F.3d 692 (9th Cir. 1997) (representing the political committee that led the electoral campaign for Proposition 209, against a federal challenge to theinitiative); and Legislature v. Eu, 54 Cal. 3d 492 (1991) (representing sponsors of Proposition 140, the legislative term-limits initiative, against a constitutional challenge to the measure). The National Tax Limitation Committee (NTLC)is one of the oldest and most strategically oriented pro-taxpayer/entrepreneur organizations in America. Established in 1975, and headquartered in Roseville, California, NTLC grew out of the work that Founder and President Lewis K. Uhler undertook with California Governor Ronald Reagan to devisestrategies to control the size and growth of government. NTLC’s mission is to make -7- structural changes in fiscal and governance practices at all levels of government, and to limit and control taxes and spending, so as to enhance the power and freedom of individuals and their enterprises. Of particular relevance to issues in this case, Mr. Uhler worked on Proposition 1, a spending-limitation initiative which, although generated by Governor Reagan, qualified for the statewide ballot in 1973 as a citizens’ initiative through signature gathering. See Stephen Goode, A Formula for Cutting Government Spending, Insight on the News,Vol. 15, at 21, June 7, 1999. Mr. Uhler also worked with Los Angeles County Supervisor Pete Schabarum to promote Proposition 140, the citizens’ initiative that established term limits for state legislators. Steve Swatt, Game Changers: Twelve Elections That Transformed California 197 (2015). The Howard Jarvis Taxpayers Association (HJTA), is a nonprofit public benefit corporation, comprised of over 200,000 individual and corporate California taxpaying members. HJTA was founded by Howard Jarvis shortly after California voters approved his property tax limitation measure, Proposition 13, in 1978. Since that time, HJTA has repeatedly sponsored and supported successful ballot initiatives, including in 1986, Proposition 62, which provides that general taxes must receive a majority vote from local voters to be effective, and, in 1996, Proposition 218, which requires local governments to obtain voter approval to impose various fees and assessments. HJTA has regularly sued governmentofficials and agencies -8- to enforce these measures. See, e.g., Howard Jarvis Taxpayers Ass’n v. City ofFresno, 127 Cal. App. 4th 914 (2005); Howard Jarvis Tiaxpayers Ass’n v. County ofOrange, 110 Cal. App. 4th 1375 (2003); Howard Jarvis Tiaxpayers Ass'n v. City of Salinas, 98 Cal. App. 4th 1351 (2002); Howard Jarvis Taxpayers Ass’n v. City ofLa Habra, 25 Cal. 4th 809 (2001); and Howard Jarvis Taxpayers Ass'n v. State Bd. ofEqualization, 20 Cal. App. 4th 1598 (1993). With expertise derived from their history of applying and defending initiative rights, Amici will assist this Court by examining the importance of thoserights anddetailing how the Public EmploymentRelations Board acted, unconstitutionally, to subvert them. BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION, HOWARD JARVIS TAXPAYERS ASSOCIATION, AND NATIONAL TAX LIMITATION COMMITTEEIN SUPPORT OF REAL PARTY IN INTEREST CITY OF SAN DIEGO INTRODUCTION AND SUMMARYOF ARGUMENT In the ruling below, the Fourth District Court of Appeal upheld the people’s right to engage in direct democracy, by voiding an edict by the Public Employment Relations Board (PERB) that madethe exerciseofthat right, in some cases, contingent on pre-approval by public officials and special interests. Boling v. Public EmploymentRelations Board, 10 Cal. App. Sth 853, 876 (2017). Amici submit this brief to urge the Court to likewise reject PERB’s edict and affirm the integrity ofthe citizens’ initiative process. -9- The right ofthe people ofCalifornia to proposelegislation bycitizens’ initiative is “one of the most precious rights of our democratic process.” Associated Home Builders ofThe Greater Eastbay, Inc. v. City ofLivermore, 18 Cal. 3d 582, 591 (1976). As set forth in the Constitution, the initiative process gives practical, dynamic expression to the foundationalprinciple of California’s governmental system, that “[a]ll political power is inherent in the people.” Cal. Const. art. II, § 1. It is a core legislative powerthatis not granted to the people, but one that they “reserve” to themselves. Cal. Const. art. IV, § 1. PERB subverted that constitutionally protected right by subjecting and subordinating it to a statutory scheme that has no application to the initiative process. PERB nullified the reforms implemented by a validly enacted citizens’ initiative—San Diego’s Comprehensive Pension Reform Initiative (CPRI)—bydeclaringthat it should have been run through “meet and confer” negotiations between public officials and labor leaders, as if it were a piece of formal governmentlegislation, not a proposal by the people. Allowingpolitical officials and special interests to vet, and perhaps veto, an initiative proposal does violence to the whole purpose of the initiative process—to be an instrument of direct, unmediated, unimpeded citizen lawmaking. Moreover, PERB imposed the meet and confer system on the initiative process even though the statute establishing that system, the Meyers-Milias-Brown Act (MMBA,Gov’t Code § 3500,et seq.), makes no -10- mention of the initiative. PERB’s action contradicted the principle underlying California Cannabis Coalition v. Upland (hereafter, Upland), where this Court held that even a separate, voter-enacted constitutional provision cannotbe read aslimiting the initiative power unless it includes a “clear statement” to that effect. 3 Cal. 5th 924, 946 (2017). PERB rationalizes this grafting of statutory procedural requirements onto the constitutional framework by asserting that a city official—San Diego’s mayor, supposedly acting in some kind of city-sanctioned capacity—took a leading role in formulating and promoting CPRI, soit should be deprived of the respect due a “pure”citizens’ initiative. PERB’s Reply Brief at 29. But the nature and extent of the mayor’s involvementis not relevant from the perspective of the Constitution. Just as there is no provision in the MMBAthat makes anyreferencetotheinitiative process, there is no provision in the Constitution that is concerned with who might have inspired, conceived of, campaigned for, or even underwritten a proposed initiative. What defines a proposal as a citizens’ initiative— legislation proposed by the public, not the public sector—is that it receives support from the required numberof voters (“electors”). Cal. Const.art. II, § 8(a). CPRI met that test, qualifying for the ballot with at least 94,346 valid signatures, and subsequently winning a 65.81 percent majority at the polls. City’s AnswerBrief at 12, 13. -ll- Those voters were exercising “precious” constitutional rights. Amici respectfully urge that PERB’s assault on those rights be rejected and the Fourth District’s vindication of them be upheld. ARGUMENT PERB SUBVERTED THE PEOPLE’S RIGHTS BY BURDENING THE CONSTITUTIONALLY GUARANTEEDINITIATIVE PROCESS WITH STATUTORY RESTRICTIONS THAT HAVE NO APPLICATION PERB subverted the people’s reserved legislative rights by introducing a vetting process for at least somecitizens’ initiatives, giving public officials and special interest a potential power of pre-clearance over measures proposed bythe public.It did so by grafting onto the constitutional frameworkfor the initiative process part of the statutory schemelaid out in the MMBA. Yet that statute has no explicit or implicit application to initiatives. Indeed, just the opposite: Not only does its text make no mention of the initiative process, its provisions for “meeting and conferring” by government and labor leaders are in direct conflict with the initiative’s purposeofallowing the peopleto legislate directly, without pre-approval by the politically powerful. -12- [. The Citizens’ Initiative Allows the People To Exercise Their Reserved Legislative Powers by Engaging In Direct Participatory Democracy Without Interference by Governmentor Special Interests The local and statewide initiative processes are interpreted in a parallel way. See, e.g., Rossi v. Brown, 9 Cal. 4th 688, 695 (1995). At both levels, the initiative servesas a “legislative battering ram,” allowing voters to “tear through the exasperating tangle of the traditional legislative procedureand strike directly toward the desired end.” Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 22 Cal. 3d 208, 228 (1978). In other words, theinitiative is an instrument ofdirect democracy, allowing exercise of the people’s “inherent political power.” See, e.2, Spencerv. City ofAlhambra,44 Cal. App. 2d 75, 77 (1941). At the local level, this power of the people to take the helm and chart their own governmental future has antecedents dating to Colonial New England’s town meetings. Tracy M. Gordon, The Local Initiative in California, p. 7, Public Policy Institute of California (2004). In California, the assertion oflocalinitiative rights by some communitiespredates the 1911 constitutional amendments that ensured them forall. “[B]y 1910, 20 charter cities in California—including . .. San Diego . . . —had implemented the initiative, the referendum, orboth.”/d. p.8. The Constitution defines the initiative process with elegantconcision: It is the “powerof the electors to propose statutes and amendments . . . and -13- to adopt or reject them.” Cal. Const.art. II, § 8. It reflects “the theory thatall power of government ultimately resides in the people” Associated Home Builders, 18 Cal. 3d at 591. Therefore, the Constitution neither establishes nor permits any bureaucratic gatekeeping authority that could dictate to the people the proposals they are allowed to bring forward. In ruling onthelegislative term limitinitiative, this Court emphasized howit would violate the spirit and purposeoftheinitiative process to subject a proposal from the public to preclearance by the powerful: To hold that reform measures such as Proposition 140, which are directed at reforming the Legislatureitself, can be initiated only with the Legislature’s own consent and approval, could eliminate the only practical means the people possess to achieve reform ofthat branch. Such a result seemsinconsistent with the fundamental provision of our Constitution placing [a]ll political power in the people. (/d., art. II, § 1.) As that latter provision also states, Governmentis instituted for [the people’s] protection, security, and benefit, and they have the rightto alter or reform it whenthe public good may require. Eu, 54 Cal. 3d at 511. The Constitution’s protection of voters’ initiative rights from outside interference extends even beyondthe point ofa measure’s enactment. Unique among the states that have initiative processes, the California Constitution allows only the voters themselves to amend an initiative after its implementation, unless the initiative explicitly grants the Legislature the powerto doso. Cal. Const. art. IL, § 10(c). See also, Joseph R. Grodin, The -14- California State Constitution: A Reference Guide 69 (Greenwood Press, 1993). In sum, the initiative right is a core powerofthe people, enshrined in and protected by the Constitution but preceding the Constitution itselfin its origins and dignity. Not even elected legislators may abridge this fundamentalright, let alone an unelected agency like PERB. If. |PERB Undermined the People’s Right of Direct Democracy by Grafting the Statutory “Meet and Confer” System OntotheInitiative Process in Some Cases, Allowing Interference by Bureaucrats and Special Interests Directlegislation plays a “near sacrosanctrole . . . in the California governmental system as a safety valve for direct participatory democracy.” Karl Manheim & Edward P. Hopper, A Structural Theory of the Initiative Powerin California, 31 Loy. L.A. L. Rev. 1165, 1197 (June, 1998) (citing Cal. Const. art. II, § 10(c)). PERB tampered with the Constitution’s “near sacrosanct” constitutional provisions for direct democracy by introducing a bureaucratic checkpoint and review process, at least for some citizens’ initiatives, in the form ofthe MMBA’s“meetand confer” requirements. This statutory overlay on the constitutional framework would give government and laborofficials a pre-clearance power over the proposed initiative or its subject matter. PERB’s ruling would robthe initiative ofits role as a “legislative battering ram . .. tear[ing] through the exasperatingtangle ofthe traditional legislative -[5- procedure.” Amador Valley Joint Union High Sch. Dist., 22 Cal. 3d at 228. Instead, it would enmesha citizens’ initiative and its sponsors in precisely that “traditional legislative procedure,” holding the proposal hostage to the very administrative authorities that the initiative process is designed to skirt. PERB’s ruling in effect amounts to a unilateral amendmentthat turns the constitutional scheme on its head, substituting a direct route for citizen legislation with an uncertain path obstructed by bureaucratic obstacles. In contrast to PERB’s rash willingness to transfer restrictions and procedures from the arena ofgovernmentlegislation to the processforcitizen lawmaking, the courts have been hesitant to introduce new impediments to the people’s initiative rights. In Building Industry Association ofSouthern California v. City of Camarillo, the court considered a requirement that governmentlegislation on zoning changesinclude“findings”on their impact for housing.It was held that importing this requirementto citizens’initiatives would be inappropriate, because it would “place an insurmountable obstacle” in their path. 41 Cal. 3d 810, 824 (1986). The unionsin this case respondthat the requirements rejected by the courts in cases like Camarillo were merely “procedural,” while the “meet and confer” process that PERB has imposedforat least someinitiatives deals with important “matters of statewide concern.” Unions’ Reply Brief at 36. But the MMBA additions to the initiative process should be rejected precisely because they are more than slight procedural adjustments, altering -16- the very structure of the process by introducing a vetting process with the powerto derail direct democracybeforeit gets started. Indeed, when it was proposed to introduce a requirement of undeniable “statewide concern”to the citizens’ initiative, by requiring that voter initiatives for new taxesreceive the same two-thirds majority required of tax measures in the Legislature, this Court said no. It rejected what amounted to an amendmentoftheinitiative process that would have imposed a steep new hurdle on its exercise. Kennedy Wholesale, Inc. v. State Bd. of Equalization, 53 Cal. 3d 245, 251 (1991). PERB’s imposing of the statutory “meet and confer” scheme on the initiative process violated its purpose andspirit, and constituted at least as much of an impedimentto the exercise ofinitiative rights as the additional requirements that were rejected in cases like Camarillo and Kennedy Wholesale. III. PERB Grafted the “Meet and Confer” System Onto the Initiative Process Even Though There WasNo Statutory Warrantfor Doing So, as Required by the Rule Articulated In Upland PERB imposed the MMBA’s “meet and confer” scheme onto the initiative process, at least for sometypesofinitiatives, even thoughthe text of the MMBAis devoid of any mention ofthe initiative process, let alone any statement of intent to introduce political roadblocks, governmental checkpoints, or bureaucratic reviews into the Constitution’s system for -17- citizen lawmaking. In taking this audacious step, PERB violated the “clear statement”rule recently enunciated by this Court in Upland—namely,that a legal provision will not be read “to constrain [the] exercise of the initiative power”if it does not include a “clear statement” of that purpose. 3 Cal. 5th at 946. MMBAincludesnoreference to the initiative whatsoever, muchless a Statementofintent to constrainits exercise. In effect, PERB was amending both the MMBAandthe constitutional frameworkfor the initiative process by applying the oneto the other. Indeed, it may have been acting even more aggressively than that: Two commentators on the Upland ruling suggest that a change to weaken the local initiative process would require a full-scale constitutional revision, so integral is the local citizens’ initiative to the structure of rights guaranteed by the Constitution. David A. Carrillo & Darien Shanske, California Constitutional Law:Interpreting Restrictions on the Initiative Power, 31 U.C. Davis L. Rev. 65, 71 (2017). The unions cite two cases where MMBAprovisions have been read into the process of local legislative action involving the voters. Unions’ Reply Brief at 28-30. But neither case concerned the citizens’ initiative process and the broad-basedlegislative authority that it guarantees for the people. Instead, People ex rel. Seal Beach Police Officers Ass’n v. City of Seal Beach dealt with city council-sponsored charter amendments— i.e., a powerto proposelegislation exercised by political officials, not members of -18 - the public. 36 Cal. 3d 591 (1984). And Votersfor Responsible Retirementv. Bd. ofSupervisors of Trinity County dealt with the powerto repeal recently enacted laws—i.e., the referendum power—a morelimited, context-specific exercise of direct democracy than the citizens’ initiative. 8 Cal. 4th 765 (1994). As an example of the way in which the referendum’s scope is more limited than the citizens’ initiative, the former may not addresstaxation (Cal. Const. art. II, § 9), while taxation is an allowable, indeed a prime, subject matter for the initiative power. Rossi v. Brown, 9 Cal. 4th 688, 699 (1995). One of the most cogent summaries of the principle that PERB violated, but that the Upland ruling upheld, is found in Associated Home Builders: [I]t has long been our judicial policy to apply a liberal constructionto [the initiative] power whereverit is challenged in order that the right be not improperly annulled. If doubts can reasonably beresolved in favor of the use of this reserve power, courts will preserveit. 18 Cal. 3d at 591 (citations omitted). However, there is no ambiguity or doubt to resolve here. PERB’s importation of a “meet and confer” system tothe initiative process is without any citation or other grounding in the text of the MMBA.Asthis Court emphasized in Upland, “[w]hen voters exercise the initiative power, they do so subject to precious few limits on that power.”3 Cal. 5th at 935 (citations omitted). PERB’s imposition of “limits on that power” was not just -19- unprecedented—it violated the rich tapestry of precedents underlying the Upland ruling IV. PERB Violated the Constitution—and the Rights of San Diego Voters—By Refusing To Treat the CPRI as a Citizens’ Initiative Merely Because the Mayor Actively Supported It PERB rationalizes its edict that there needed to be “meet and confer” discussions over CPRI—or at least over its subject matter—citing the mayor’s “extensive actions in support”ofthe measure. PERB Reply Briefat 29. But the mayor’s actions are not relevant from the standpoint of the Constitution. According to the Constitution, there is only onecriterion that defines a measureasa citizens’ initiative—that it has been proposed by “the electors”—the voters—in sufficient numbers to qualify for the ballot. Cal. Const.art. II, § 8(a). The electors’ exercise of their constitutional right of direct democracy is what classifies a measure as a citizens’ initiative. It cannot be stripped of that status based on who did or did not engage in “extensive actions in [its] support.” Indeed, San Diego’s mayor broke no ground in this case. There is a significant tradition of officeholders undertaking “extensive actions”in support ofcitizens’ initiatives. In 1973, for instance, Gov. Ronald Reagan sponsored Proposition 1, a citizens’ initiative to limit taxes. He was joined by Lewis K. Uhler, wholater formed amicus organization on this brief, National Tax Limitation Committee. Goode, Formulafor Cutting Government Spending at 21. And in 1990, Los Angeles County Supervisor Pete Schabarum,also joined by Lewis K. Uhler, -20 - sponsored the term limit measure, Proposition 140. Swatt, Game Changers at 197. Notably, Schabarum’s sponsorship—i.e., his “extensive actions in support” of Prop. 140—did not keep this Court from recognizing it as an exercise of the people ’s “reserve[d] ... power[] ofinitiative.” Eu, 54 Cal. 3d at 501. Apparently realizing it is on shaky constitutional grounds, to putit mildly, PERB protests thatit did not formally “find” that the mayor’s actions explicitly turned CPRIinto “a City-Council sponsored measure, rather than a citizens’ initiative.” PERB Reply brief at 30. This amounts to semantic gamesmanship. The salient fact is that PERB treated CPRI as government sponsoredlegislation that had not complied with MMBA’s requirementsfor government sponsoredlegislation. The sanction PERB imposed wastargeted entirely at the initiative, branding it as invalid and “not pure,” because the mayor had championed it without conducting “meet and confer” negotiations. PERB Reply Brief at 29. PERB’s edict nullified the reforms implemented by CPRI, ordering the city to make employees “whole”forthe compensation and benefits of which CPRI deprived them. Boling v. Public Employment Relations Board, 10 Cal. App. 5th 853, 866, 867 (2017). PERB protests that it was not trying to interfere with the initiative process, but merely responding to the city’s failure to bargain on the pension reform agenda promoted by the mayor. PERB Reply Brief at 34. But the sanctionit issued— directed soclearly at invalidating CPRI— givesthelie to that claim -21- and showsthat PERB’s agenda was to impose the MMBAregulations onto a citizens’ initiative. The tangible victims of PERB’sassault on the initiative process were the tens ofthousands of San Diegans who, in supporting CPRI,had exercised the reserved legislative rights that the Constitution guarantees them. The initiative’s three named“proponents”werevictims as well. As this Court has recognized, “in the pre-election setting,” the “official proponents” who launch a citizens’ initiative possess “their own personal rights and interests” in the measure. Perry v. Brown, 52 Cal. 4th at, 1141 (citations omitted). PERB disregarded the proponents’ interests and rights, by ruling that government and union officials should have been allowed to “meet and confer” on their initiative or its subject matter—a process that could have derailed it outright or subverted it by introducing a competing measure. PERB Reply Briefat 34. To compound its audacity, PERB insists its nullification of the reforms approved by two-thirds of the San Diego electorate deserves deferential review, because of PERB’s “expertise” on issuesrelating to the MMBA. PERB’s Reply Brief at 12. But PERB interpreted—or rather, distorted— MMBAin a waythat diluted fundamental constitutional rights and disenfranchised tens of thousands of voters. Whatever its “expertise” on the MMBA, PERB’s interpretation of that statute in this context cannot be given deference. 22 - Indeed, the judiciary is the ultimate oracle on the meaning and scope of constitutional provisions and the rights they protect. See, e.g., Pension Obligation Bond Committee v. All Persons Interested, 152 Cal. App. 4th at, 1404 (citations omitted). In the context ofconstitutionally protectedinitiative rights, that role obviously includes authority to construe other provisions— whether constitutional or statutory—that might impact those rights. Thus, this Court’s burden in Upland was to determine whether a constitutional amendment—Proposition 218—constrained the use of the citizens’ initiative. 3 Cal. Sth at 946. In sum, the courts cannot defer to PERB’s misuse and misreading of the MMBA without forsaking their role as interpreter, defender, and enforcer of the Constitution and their duty to “jealously guard” the people’s initiative rights. Associated Home Builders, 18 Cal. 3d at 591. -23- CONCLUSION Amici submit that the court below was correct in ruling against PERB’s edict and its subversion ofthe initiative process, and urge this Court to rule likewise. DATED: November 16, 2017. Respectfully submitted, MERIEM L. HUBBARD HAROLD E. JOHNSON By s/ Harold E. Johnson HAROLDE. JOHNSON Attorneysfor Amici Curiae Pacific Legal Foundation,et al. -24- CERTIFICATE OF COMPLIANCE Pursuant to California Rule of Court 8.204(c)(1), I herebycertify that the foregoing APPLICATION TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION, HOWARD JARVIS TAXPAYERS ASSOCIATION, AND NATIONAL TAX LIMITATION COMMITTEEIN SUPPORT OF REAL PARTY IN INTEREST CITY OF SAN DIEGO is proportionately spaced, has a typeface of 13 points or more, and contains 4146 words. DATED: November16, 2017. s/ Harold E. Johnson HAROLDE. JOHNSON -25- DECLARATION OF SERVICE BY MAIL I, Iza A. Rodriguez, declare as follows: I am a resident of the State of California, residing or employed in Sacramento, California. I am over the age of 18 years and am not a party to the above-entitled action. My business address is 930 G Street, Sacramento, California 95814. On November 16, 2017, true copies of APPLICATION TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION, HOWARD JARVIS TAXPAYERS ASSOCIATION, AND NATIONAL TAX LIMITATION COMMITTEE IN SUPPORT OF REAL PARTYIN INTEREST CITY OF SAN DIEGOwereplaced in envelopes addressedto: Kenneth H. Lounsbery JamesPatrick Lough Yana L. Ridge Alena Shamos Lounsbery Ferguson Altona & Peak, LLP 960 Canterbury Place, Suite 300 Escondido, CA 92025 Counselfor Petitioners, Catherine A. Boling, T.J. Zane, and Stephen B. Williams Jose Felix DeLaTorre Wendi Lynn Ross Joseph Eckhart Public Employment Relations Board 1031 18th Street Sacramento, CA 95811 26 - Jeremy G. Zeitlin Public Employment Relations Board 1330 Broadway, Suite 1532 Oakland, CA 94612 Counselfor Respondent, Public Employment Relations Board Michael Travis Phelps Office of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, CA 92101 Counselfor Real Party in Interest, City ofSan Diego Ann M. Smith Smith Steiner Vanderpool & Wax 401 West A Street, Suite 320 San Diego, CA 92101 Counselfor Real Party in Interest, San Diego Municipal Employees Association James J. Cunningham Law Offices of James J. Cunningham 4141 Avenida De La Plata Oceanside, CA 92056 Counselfor Real Party in Interest, Deputy City Attorneys Association ofSan Diego Ellen Greenstone Rothner Segall & Greenstone 510 South Marengo Avenue Pasadena, CA 91101 Counselfor Real Party in Interest, American Federation ofState, County and Municipal Employees, AFL-CIO, Local 127 Fern Steiner Smith Steiner Vanderpool & Wax, APC 401 West A Street, Suite 320 San Diego, CA 92101 Counselfor Real Party in Interest, San Diego City Firefighters Local 145, IAFF, AFL-CIO _27- Andrew Jon Ziaja Leonard Carder LLP 1330 Broadway, Suite 1450 Oakland, CA 94612 Counselfor Pub/Depublication Requestor, International Brotherhood ofElectrical Workers Local 1245, International Federation ofProfessional and Technical Employees Local 21, Operating Engineers Local Union No.3, and Marin Association ofPublic Employees Court Clerk Fourth Appellate District Division One Symphony Towers 750 B Street, Suite 300 San Diego, California 92101 Via True Filing which envelopes, with postage thereon fully prepaid, were then sealed and deposited in a mailbox regularly maintained by the United States Postal Service in Sacramento, California. I declare under penaltyofperjury that the foregoingis true and correct and that this declaration was executed this 16th day of November, 2017, at Waa a. Redguve CIZA A. RODRIGUEZ Sacramento, California. 28 -