California courts generally should defer judicial review of ballot initiatives until after the election, the state Supreme Court reaffirmed last week in a holding that limits the scope of pre-election review. The unanimous opinion in Independent Energy Producers Ass’n v. McPherson, S135819 (2006), emphasizes that courts should consider the availability and adequacy of post-election relief in deciding whether to resolve a challenge to a ballot measure before the election. Under this approach, the court made it clear that pre-election review will now be limited primarily to procedural challenges, These are cases challenging whether a measure has properly qualified for the ballot, not the underlying validity of the measure.  Pre-election review of procedural challenges remains because courts have been (and evidently should continue to be) reluctant to overturn the results of an initiative election on procedural grounds.

The Court’s holding in Energy Producers applies to claims that a ballot measure cannot lawfully be adopted by initiative—for example, because it invokes a power reserved to the Legislature. Whether based on constitutional or statutory grounds, such substantive challenges can be resolved after the election by invalidating the measure, if it is approved. They consequently present a "less compelling need . . . for expedited . . . resolution," in the Court’s view, than do procedural challenges like the one in Costa v. Superior Court, 37 Cal. 4th 986 (2006), decided earlier this year. 

Costa involved a claim that an initiative failed to meet the procedural requirements to be placed on the ballot, due to minor discrepancies between the version circulated by petition and the version submitted to the Attorney General for review. Because the courts are reluctant to overturn the results of a completed election on purely procedural grounds, the challenge might have become effectively moot if the measure had been approved. For that reason, the court held that pre-election review was appropriate in order to decide the threshold question whether the initiative should be submitted to the electorate at all. After Energy Producers, however, that holding appears limited to its facts.

The high court granted review in Energy Producers after a lower court ordered a proposed initiative, Proposition 80, withheld from the November 2005 ballot. Proposition 80 would have conferred additional authority on the California Public Utilities Commission ("PUC").  The Court of Appeals held that the California constitution clearly allows only the Legislature, not the electorate, to grant additional power to PUC, and therefore Proposition 80 would be invalid if enacted by initiative. 

In granting review, the Supreme Court initially relied on Brosnahan v. Eu, 31 Cal. 3d 1 (1982), for the proposition that pre-election review of ballot initiatives is presumptively improper, absent a "clear showing of invalidity." Because the Justices did not agree with the lower court that the California constitution "clearly" precludes the expansion of PUC’s authority by initiative, they found pre-election review inappropriate and allowed Proposition 80 onto the ballot. Although the challenge became moot when the initiative was rejected at the polls, the Court retained the case to provide further guidance on when pre-election review is justified.

Brosnahan does not control in cases like Energy Producers, the Court decided. Brosnahan involved a claim that the substance of a measure was unconstitutional, whether enacted by the Legislature or by the people. The challengers in Energy Producers, by contrast, alleged only that the measure could not be enacted through the initiative process. But this now appears be a distinction without a difference. By distinguishing Costa, the Energy Producers opinion makes clear that post-election review, with its benefits of "full, unhurried briefing, oral argument, and deliberation," remains the preferred method for resolving most challenges to ballot measures. Although a court may weigh these advantages against the costs of postponing review, such as the confusion and frustration caused by the presence of an invalid measure on the ballot, hearing the challenge after the election "often will be the wiser choice."

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