A Flawed Process

An interesting piece appeared in the San Diego Union Tribune in the SD In Depth section (Sun 7-12 Taking Initiative by Robert M Stern). In it, Mr. Stern notes the conundrum most Californians feel for California's unique citizens initiative process of placing just about any controversial issue up for a popular vote.

You would think Californians, of all political persuasions, would love the idea that they can have a say about some issues politicians typically control through the highly partisan legislative process. But the truth is, as Mr. Stern documents, voters are torn. It depends on whose ox is being gored, and in many instances, voter indifference ends up costing tons of tax dollars to accomplish very little.

Stern notes that direct democracy is over 100 years old in California. Established as a way to combat the influence of wealthy railroad owners, the sad fact is money is still the most influential force in the initiative process. If you have money behind your proposition, you can help it to qualify, promote it with advertising, and hire lawyers to defend it whether it wins or loses.

As the voters in Escondido have discovered during the 3 year old war with a rich Beverly Hills developers assault on our settled neighborhood, the initiative process is not always the elixir it appears to be.

Our side was successful in collecting nearly 30% more qualifying signatures than required, using non-compensated gatherers. Volunteers spent countless hours walking door to door, and speaking to locals at signing tables in front of grocery stores. To qualify our Citizens Property Rights Initiative, we played by the rules, and the City Council was so impressed with our perseverance and the logic of our claims, that the golf course was never meant to be anything other than open space, that they unanimously adopted the initiative, making it law before the voters had a chance to give it their endorsement.

The community was ecstatic and celebrated our victory, perhaps prematurely. Then, when the other side decided to pursue their development plans through the same process, we began to understand the enormous disparity in how wealth can affect policy. Paying three times the usual rate for signature gatherers, the opposition qualified their own initiative, Proposition H, which would have imposed a Specific Planning Area on the community. A massive housing tract that would amend the City's General Plan, and allow the developers economic windfall to proceed free of many of the usual process restrictions new residential building projects typically must endure.

Our meager resistance budget was no match for the nearly unlimited budget the developer would allocate to promote his legislation. It would take a heroic volunteer effort, organized and executed by individual contributions of personal time and money, but the local homeowners defeated the well funded and professionally managed Prop H election effort by a nearly 2 to 1 margin!

Once again, the party was on! What an effort, and what a sweet victory! David had defeated Goliath! Our relatively small group of local homeowners had successfully convinced the Escondido electorate that the future of our neighborhood should not be overwhelmed by wealthy outside interests.

But wait! Once again, our celebration may have been premature...

We forgot to factor in the influence of the judiciary and how well-healed 'victims' can use their resources to put undue influence on the courts to find some minor technical flaw in the language or 'intent' of legislation. Legislation, that was written by experienced property rights lawyers, who were certain that they had historical and legal precedent to fashion their legislation to make it immune from any legal challenge. But according to a recent decision by a Vista Superior Court Judge, they were wrong.

So what went wrong?

It appears that the writers of the Escondido Citizens Property Rights Initiative  (CPRI) had all of their legal points correct, except one: the one that the whole thing rested on. The fact that a previous Special Use Permit zoning exemption was never memorialized in the General Plan that was developed and made law several decades after the golf course was allowed to be built on property zoned specifically for residential home building, was enough for the 'victim' to claim his property was unconstitutionally 'spot zoned' by the CPRI, and because of that, he was being unfairly singled out, and his property value was illegally destroyed by the initiative. Therefore, the Judge ruled, the CPRI was null and void.

In his piece, Mr. Stern suggests that in the future, a better and more economically efficient way to qualify voter initiatives would be to have them reviewed by a legislative board hearing before they go on the ballot. This is precisely what the Escondido City Council supposedly did. Upon review, they adopted the proposition, making it law and denying it the chance to be voted on by the electorate. They did not, unfortunately, recognize the unconstitutionality of the way the document dealt specifically with only the Country Club property. That, apparently, made the intent too discriminating, not generic enough to pass constitutional muster.

The problem is, even if they had made the determination that the proposition was flawed, there is no legal allowance for them to send it back for a rewrite. It was all or nothing at that point.

Stern's idea is that if the legislation fails to meet tough legal standards, it would be sent back for refinement. This would eliminate the wasted efforts of citizen initiatives that like the CPRI, was later determined to be legally deficient.

Based on the Stern suggestion, the CPRI could have been resubmitted after it was reviewed, and rewritten to make the document reaffirm that any and all Special Use Permits, such as the one the City had issued to the original developer of the Country Club, declaring the golf course plots to remain open space in perpetuity, should be and will forever be recognized as law by the current General Plan, unless or until it was amended by due process. That would have removed the individual property aspect, and no one could have claimed that the legislation was aimed specifically at their singular property.

Like instant replay in a controversial call in a football game, the intent is to get it right. Why spend so much time, money and social angst on a legislative effort that goes down in flames not because the intent was malicious but because the wording was flawed?

Mr. Stern has illuminated a dark corner of the voter initiative process. California legislators need to step up and fix this valuable tool of the democratic process. The conflict between process and intent needs to be corrected. It may be too late for the Escondido Country Club community, but it is never too late to let the people determine their own destiny.