June 19, 2006

Supreme Court Decision in Independent Energy Procucers Case

This case involves the propreity of preelection review and whether the issue addressed by the measure was subject to the initiative power. Here is the Court's summary of its holding:

"For the reasons set forth below, we have reached the following conclusions with respect to these two issues. On the first issue, we explain initially that the general rule set forth in Brosnahan v. Eu, supra, 31 Cal.3d 1 (Brosnahan I) —recognizing a strong presumption against preelection resolution of a challenge to an initiative measure — is inapplicable to the challenge raised here, because the challenge is not based on the alleged unconstitutionality of the substance of the initiative measure but rather on the contention that he measure in question is not the type of measure that may be adopted through the initiative process.

Nonetheless, as we further explain, although preelection resolution of this type of a challenge is not presumptively improper, the challenge here at issue — unlike the type of challenge at issue in Costa — generally will not become moot after an election if the measure is adopted, and thus such a claim reasonably is susceptible to judicial resolution either before or after an election. As a consequence, when such a challenge is brought prior to an election, a court should recognize that the need for an expedited preelection resolution of the claim is less compelling than with regard to the type of claim at issue in Costa. Accordingly, in such a case a court should take into consideration the availability of postelection relief in deciding whether it is preferable to resolve the issue in the often charged and rushed atmosphere of an expedited preelection review, or instead to leave the challenge for resolution with the benefit of the full, unhurried briefing, oral argument, and deliberation that generally will be available after the election.

On the second issue, we conclude that the Court of Appeal erred in interpreting article XII, section 5 as precluding the people, through the initiative process, from adopting a statutory provision that grants additional authority to the PUC. Past California decisions establish that language in the California Constitution recognizing the authority of the Legislature to take specified action generally is interpreted to encompass the exercise of such legislative power either by the Legislature or by the people through the initiative process. Although the Court of Appeal was of the view that the specific wording of article XII, section 5 required an exception to this general proposition, as we shall explain the language of that constitutional provision is at most ambiguous. Particularly when this language is read in light of the origin and purpose of the provision, it is clear that the constitutional provision cannot reasonably be interpreted to bar the people, through the initiative process, from enacting a statute or statutes conferring additional authority upon the PUC.

Accordingly, we conclude that the judgment of the Court of Appeal must be reversed."

Posted by Randy Riddle at June 19, 2006 10:52 AM