[EL] Allison Hayward has issues.

Tue May 2 02:04:52 PDT 2017

Absolutely, I’d like to see Commissioner Hayward point out her issues 
with her commission’s commission from the Legislature.What I was saying 
is that, because of Cal. Const. Art. III, Sec. 3.5, litigants would have 
to take a lawsuit through a court of appeal ruling before the 
constitutional issue(s) could be resolved.By pointing out the issues 
(especially at a commission hearing, if she may), she might just prompt 
someone to prosecute such a suit.

But hmmm, now I wonder if she (or her commission) might have the 
resources and ability to get a declaratory judgment from a court of 
appeal by bringing a suit herself (or itself)....

Anyway, I was a plaintiff in a suit involving similar legislative 
overreach in California.

I argued to a board that statutory authority the board was poised to use 
was unconstitutional.A lawyer advised the board that its role did not 
include deciding the constitutionality of its statutory authority.The 
board went ahead and took an action based on the authority at issue (a 
purported legislative amendment of a voter-approved bond act).Litigation 
ensued, and a settlement was reached before the litigation reached a 
court of appeal.  (So I suppose it could happen again.)

(You can find a little more detail about that at the top of page 7 of 
the “04/24/17- Assembly Elections And Redistricting” committee analysis 
of a current bill (AB 668).Look for it here 
<http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201720180AB668>.)

- dah

On 5/1/2017 12:54 PM, Barnaby Zall wrote:
> It's a good point, but not necessarily dispositive of what 
> Commissioner Hayward should be doing.
>
> Try telling Sally Yates that "constitutional issues are not your 
> problem." https://thinkprogress.org/trump-becomes-first-president-since-nixon-to-fire-an-attorney-general-5b5439d2ef25 
>  Yes, President Trump had the constitutional power to fire her for not 
> doing her duty, but did Yates have the power to ask someone whether 
> what she was doing was constitutional? Whatever your views on the 
> first travel ban and the subsequent judicial orders, Yates' analysis 
> was upheld by the courts. (Although, considering that particular case, 
> I will point out that the 9th Circuit's analysis under the three-step 
> analysis of the sources of Presidential power from Jackson's 
> concurrence in Youngstown Steel finding conflicting provisions in the 
> INA governing the issuance of visa vs. the President's port manteau 
> powers under 8 USC 1182(f) was very similar to these questions Hayward 
> is raising. When is a branch of government's authority at its maximum 
> or minimum, and what does a reviewing court look to for guidance? See 
> Justice Jackson's concurrence, which has mostly become the controlling 
> guidance.)
>
> I believe that Commissioner Hayward's request for input was not to try 
> to perform some unconstitutional act, but to try to gather information 
> to evaluate how the FPPC performs its duty as a whole. She could, for 
> example, raise the issue whenever one of these fines comes before the 
> FPPC.
>
> As one who has been involved in more than 300 ballot initiatives, I am 
> troubled whenever the Legislature enacts an "exception" to a ballot 
> initiative, especially when the Calif. Constitution provides other 
> alternatives. I don't suggest that, having found what appears to be a 
> "troubling" (your term) problem, Hayward leave the FPPC as Yates did 
> the USDoJ, but I do think it's valuable that Hayward is at least 
> questioning the Legislature's actions rather than "going with the 
> flow." Because, assuming, as in California, power of the power through 
> the ballot initiative is not mentioned in Jackson's Youngstown 
> concurrence, the principle of the legislative power in this case 
> surely seems like it comes within the third step (any constitutional 
> power of the legislature is limited, rather than bolstered, by other 
> limits of other branches of government).
>
> These are great questions that should be fundamental to any agency's 
> thinking.
>
> Barnaby Zall
> Law Office of Barnaby Zall
> 685 Spring St. #314
> Friday Harbor, WA 98250
> 360-378-6600
>
>
> -----Original Message-----
> From: David A. Holtzman <David at HoltzmanLaw.com>
> To: Allison Hayward <ahayward at fppc.ca.gov>; Election Law Listserv 
> <law-election at uci.edu>
> Sent: Mon, May 1, 2017 12:27 pm
> Subject: Re: [EL] Allison Hayward has issues.
>
>
> Well, your issues are troubling, very troubling.
>
> Your staff appears to be wrong about the statutory issue.
>
> But at this point, the constitutional issues are not your problem.
> You may have taken an oath to uphold the Constitution, but the 
> Constitution says you can’t decide what it means to uphold the 
> Constitution.
>
>
> Here is Section 3.5 of Article III of the California Constitution:
>
> SEC. 3.5.
> An administrative agency, including an administrative agency created 
> by the Constitution or an initiative statute, has no power:
> (a) To declare a statute unenforceable, or refuse to enforce a 
> statute, on the basis of it being unconstitutional unless an appellate 
> court has made a determination that such statute is unconstitutional;
> (b) To declare a statute unconstitutional;
> (c) To declare a statute unenforceable, or to refuse to enforce a 
> statute on the basis that federal law or federal regulations prohibit 
> the enforcement of such statute unless an appellate court has made a 
> determination that the enforcement of such statute is prohibited by 
> federal law or federal regulations.
> (Sec. 3.5 added June 6, 1978, by Prop. 5. Res.Ch. 48, 1977.)
>
>
> Litigation might resolve the issues.
> But litigants might settle before they reach an appeals court.
> Over and over?
> Who knows?
>
> - dah
>
>

-- 
David A. Holtzman, M.P.H., J.D.
david at holtzmanlaw.com

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