[EL] Palmdale California VRA case

[David Ely]

I apologize for the length of this post and if it seems that I am beating a
dead horse, but I believe it is important. After this I will drop it.

 

It has been argued that Charter Cities are not covered by the CVRA because
of the home rule provision of Article XI Sec 5(b)(4) and the plenary
authority granted therein, and that the Court in Johnson v Bradley confirms
that such authority is beyond the reach of state legislation, "without
regard to whether the state law is narrowly tailored to address a statewide
(or even Constitutional) concern."  

This is based on an incomplete reading of sec 5(b)(4), and an incorrect
reading of Johnson v Bradley.

 

First, a full reading of Article XI sec 5(b)(4) is as follows:

(4) plenary authority is hereby granted, subject only to the restrictions of
this article, to provide therein or by amendment thereto, the manner in
which, the method by which, the times at which, and the terms for which the
several municipal officers and employees whose compensation is paid by the
city shall be elected or appointed, and for their removal, and for their
compensation, and for the number of deputies, clerks and other employees
that each shall have, and for the compensation, method of appointment,
qualifications, tenure of office and removal of such deputies, clerks and
other employees.

 

The words "subject only to the restrictions of this article", demonstrate
the problem. Article XI controls local government and does not grant any
authority beyond that and it also gives the legislature the authority to
prescribe procedure for claims against local governments (sec 12). While the
exact effect of this is open to argument, it is clearly not an absolute
exclusion of legislative power.

 

Second, the court in Johnson v Bradley did not confirm a standard that put
sec 5(b)(4) beyond the reach of any state law. 

"Yet the Mackey court upheld a charter city's right to adopt a different
course and decline to follow the state statute. This holding suggests that
the constitutional provision granting charter cities "plenary authority"
over the "manner" of electing municipal officers has a broader scope than
envisioned by petitioners. We conclude petitioners offer no persuasive
justification to question the reasoning or result in Mackey, and we are
reluctant to endorse the narrow scope of the word "manner" advocated by
petitioners."

 

This might suggest a standard as described, except that the opinion
continues:

 

"We are hesitant, however, to embrace the expansive view of article XI,
section 5, subdivision (b)(4), advanced by respondents and their amici
curiae. They assert, with some force, that partial public financing of
municipal election campaigns is "one way to elect municipal officials,"
although it is "certainly ... not the only 'manner' in which to do so." They
reason that under the plain words of article XI, section 5, subdivision
(b)(4), partial public funding of local campaigns, being a "manner" of
municipal elections, is a subject within the city's plenary regulatory
authority that falls within the core definition of a "municipal affair"
under that constitutional provision. fn. 15

 

The opinion merely states that petitioners had failed to offer persuasive
justification to question the reasoning or result in Mackey. They do not
address the question of whether the charter provision fell within the scope
of sec 5 (b)(4), and they certainly do not address the question of the exact
standard or limitation Mackey stands for. The fact that they include a
footnote pointing out the existence of constitutional limits in a paragraph
that begins with a reluctance to embrace the petitioner's expansive view of
the section suggests a willingness to limit it regarding legislative action
that addresses constitutional protections and not merely a statewide
concern. Referring back to Mackey suggests just such a distinction. In
discussing respondents argument for the precedence of state law the Mackey
court states:

 

"On the other hand, such cases as People v. Elkus, 59 Cal.App. 396 [211 P.
34], are not helpful to respondent since it involves the right to vote, not
the details thereof, by imposing a so-called "proportional representation"
system of voting; the above distinction [262 Cal. App. 2d 366] is borne out
by the same court that decided Elkus which subsequently held that a
chartered city (Sacramento) has control over the alphabetical listing on the
ballot of candidates' surnames. (Harder v. Denton, 9 Cal. App. 2d 607 [51
P.2d 199].)"

The Mackey court clearly recognized a distinction also found in earlier
decisions between the right to vote and other issues in the question of
legislative control of "municipal affairs".

 

Here is how the right to vote is described by the court in Harder v Denton:

Preliminarily, I may state that the elective franchise is a sacred right.
Every elector of the city is interested in the [9 Cal. App. 2d 609]
maintenance of that right. Every elector of the city is also interested in
seeing that the persons for whom he intends to vote may have a fair
opportunity to win the election. When any act is taken which interferes with
that right, which limits that right, or subjects that right to the wish or
desire of a clerical officer the exercise of that power is not
discretionary, it is not directory, it is mandatory, for the simple reason
that no clerical officer possesses the right or the power or the authority
to limit or in any way by his acts abridge the rights of an elector. If a
method of action is pointed out for the clerical officer which subserves the
rights of the electors the privilege of the clerical officer to limit that
right does not exist.

 

As has been pointed out I am not a lawyer, and I am not attempting to make a
legal argument, just pointing out factual problems in the basis for another
argument. 

 

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