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If you thought Proposition 80, November’s failed ballot initiative to change regulation of the state’s energy industry, had faded into history, guess again. It resurfaces Tuesday when the California Supreme Court tries to decide during oral arguments in San Francisco whether voters ever had the authority to tamper with the Public Utilities Commission in the first place. And based on supplemental briefing ordered in March, the justices also intend to further clarify under what circumstances courts should step in and block initiatives from the ballot prior to election. Sacramento’s Third District Court of Appeal yanked Prop 80 off the Nov. 8 ballot on July 22, contending it violated the state Constitution. But five days later, the state Supreme Court ordered it back on, saying the measure wasn’t clearly unconstitutional and that the underlying issues could be resolved at a later date. Prop 80 failed by a vote of 69.5 percent to 30.5 percent. Robin Johansen, a partner in Remcho, Johansen & Purcell’s San Leandro office who represents Prop 80 proponents, said last week the Supreme Court is likely looking to build on Costa v. Superior Court (Lockyer), 37 Cal.4th 986, its Feb. 16 ruling that prevents courts from invalidating ballot measures over minor wording discrepancies. “They have said in Costa that when dealing with defects in the way the measure qualifies for the ballot, that should be an appropriate challenge,” Johansen said. “This case involves the scope of the initiative power, and unless [a measure] is very clearly beyond the initiative power, then the issue should wait until after the election because there’s just not time to delve into something as important as that.” Consumer advocates and labor unions put Prop 80 on the ballot in an angry response to the power blackouts and energy market manipulation of 2000-01. According to court documents, their purpose was to avoid future crises “by creating a more stable electricity market, increasing long-term energy planning, changing energy procurement procedures, increasing reliance on renewable energy and ultimately lowering rates.” In its decision to take Prop 80 off the ballot, the Third District held that Article XII, Section 5 of the California Constitution gives the state Legislature plenary power over PUC regulation and prohibits the people from the process unless they pass a constitutional amendment. Prop 80 opponents are raising that same argument Tuesday, even though the Supreme Court in putting the issue back on the ballot last year said it wasn’t clear that the Constitution “precludes the enactment of Proposition 80 as an initiative measure.” Richard Martland, an of counsel in the Sacramento office of Nielsen, Merksamer, Parrinello, Mueller & Naylor who will argue the opponents’ position, said last week there is no ambiguity in the Constitution and that the whole case is about “trying to keep the initiative process on track.” “If you want to do something that makes a change in the Constitution,” he said, “then change the Constitution.” In court papers, Martland argues that under Johansen’s view, “the entire statutory framework for operation of the PUC, a constitutional agency, could be repealed by a statutory initiative and replaced with new statutory provisions.” Down the line, he said last week, a ruling for his opponents could allow superior courts, rather than the appellate and supreme courts, to review the PUC’s actions. Johansen said if the court rules against her, holding that the word “plenary” means “exclusive,” the issue could go beyond the PUC and impede the entire initiative process. But, she added, “we don’t think any such interpretation is possible given the language and the history of Section 5.” In her court papers, Johansen noted that before the Third District’s ruling no opinions had ever taken a duly-qualified initiative off the ballot on the basis that only the Legislature could act. She also argued that the Third District had rejected a similar challenge by a consortium of energy companies in 1998. “It is not ‘necessary’ to preclude use of the initiative power to effectuate the Legislature’s power under Section 5,” she wrote. “The two can operate concurrently. Because they can, the provisions must be harmonized in order to effectuate the people’s ‘precious right’ of initiative.” In response, Martland argued that it’s “absurd” to believe that Prop 80 doesn’t interfere with the powers of the Legislature, considering that “legislative provisions can be repealed, discretionary provisions be made mandatory and a super majority requirement be imposed on changes wrought by an initiative.” He also claimed that declaring Prop 80 invalid wouldn’t prevent anyone from seeking to re-regulate the energy industry in other ways. “Such initiatives,” Martland wrote, “would merely have to contain a constitutional component authorizing the statutory amendments contained in them, or in the alternative, a direct repeal of Article XII, Section 5.” The attorney general’s office, though not a direct party in the case, submitted a letter responding to the court’s question about the propriety of pre-election review by the courts. “We support the strong presumption that favors the exercise of the people’s voting franchise,” Chief Assistant AG James Humes of Sacramento wrote, “and we also support this court’s recognition that in appropriate circumstances, pre-election review is proper.” The case is Independent Energy Producers Association v. McPherson (Finkelstein), S135819.

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