August 05, 2005

Proposition 77 Oral Argument

It sounds like the oral argument in the Proposition 77 case was very lively. The Court indicated that it intends to issue its decision on Tuesday, August 9. Presiding Justice Arthur G. Scotland and Justices Coleman A. Blease and M. Kathleen Butz will be the justices deciding the case.

Justice Blease's questioning of Proponents' counsel Dan Kolkey focused on whether the proponents were negligent in the preparation of the petition (a different petition was circulated than was presented to the AG for title and summary). In doing so, Justice Blease questioned his former court colleague about when he and the proponents knew about the defects with the petition. It sounds like they may have known about the problems weeks before the Secretary of State certified the petition on June 10; they found out about the problem some time after May 5, when the petitions were submitted to the county election officials, and did not inform the SOS until June 13. Given that the proponents are seeking to rely on the substantial compliance doctrine, Justice Blease's questions are significant. In the California Teachers Association decision, the court cautioned that substantial compliance does not apply where the proponent has been negligent in the preparation of the petition.

The Court also expressed concerns about whether pre-election relief was appropriate. This question comes in the wake of the Supreme Court's recent order summarily reversing the decision of this same court of appeal to remove Proposition 80 from the ballot. In that case, however, the issue was whether the measure was substantively unconstitutional, an issue usually addressed after the measure has been approved. Here, the question is whether the proponents failed to follow the rules that govern whether the measure can appear on the ballot in the first place.

Finally, the Court expressed concern about whether the voters should be deprived of a right to vote on this measure because of the carelessness of the proponents. This is always a concern in this type of case.

Update: Some more views of the oral argument, via Dan Weintraub and Rick Hasen. And here is the view from John Myers of Capitol Notes.

Posted by Randy Riddle at August 5, 2005 01:16 PM