Thats a bit misguided in interpreting the propositions. By default propositions cannot be override by the legislature, by adding the provision it was more amendable than normal.
> If Proposition 22 passes, could it be changed later?
> It would be very difficult. Proposition 22’s text carries language that aims to block further legislative action targeted at gig companies.
> If passed, amending it would require a seven-eighths supermajority of the Legislature — a daunting hurdle.
> In California, a law created by ballot measure can be changed only by another ballot measure, unless the original measure specifies otherwise. Because it’s a hassle to push through ballot measures, initiatives will frequently waive this protection and provide opportunity for the measure to be amended by the Legislature.
> A two-thirds majority vote is a common benchmark initiatives use. A seven-eighths majority requirement is unheard of.
https://www.latimes.com/business/technology/story/2020-10-19...
Not saying prop 22 has no drawbacks, but there's no reason to make up fake reasons to criticize it.
Also, unusually generous? In that very same thread, it was mentioned many propositions include a provision for amendment with a 3/4ths vote.
And this proposition also (unconstitutionally, apparently) limited how the whole thing could be amended.
Unusually generous seems to be a far cry from a reasonable description. It was both harder to amend than many propositions, and included a novel attempt to restrict the ways in which it could be changed. Just because it could have been impossible to amend does not make it unusually generous.
The judgment explicitly notes that there is no problem with the proposition limiting how the special amendment procedure written in to the proposition can be used.
Rather, you appear to be thinking of the part of the ruling that overruled the part of the proposition defining the extension of collective bargaining rights to app-based drivers as constituting an "amendment" of the proposition.
No. Just like when Congress passes a law ruled unconstitutional, it doesn't mean that Congress's existence, or the manner in which it drafts law is unconstitutional. It just means that particular law gets to be overturned.
> For Proposition 22 to be ruled unconstitutional based on its unusually-generous legislative amendment requirement
with what you wrote:
> does a court ruling that the referendum's result is unconstitutional
Did you forget something?
Ruling that prop 22 is unconstitutional based on a general feature of all propositions which prop 22 partially shares is ruling that the proposition system is unconstitutional.
If you pass a bill of attainder against Bill as a proposition and it gets overruled because bills of attainder are illegal, that says nothing about other propositions. But if you pass a bill of attainder against Bill as a proposition and it gets overruled because propositions are illegal, that invalidates the entire proposition system.
At least, a judge seems to think so.
> In a ruling issued Friday, Alameda County Superior Court Judge Frank Roesch declared that Proposition 22 is “unenforceable,” arguing several sections of the measure are unconstitutional under California state law. They included a section that required a seven-eighths legislative supermajority to amend the measure, which defied the legislature’s amendment power under the state constitution, according to the judge.
https://www.washingtonpost.com/technology/2021/08/20/uber-ly...
My understanding is that it is not the specific supermajority requirement that is the issue, because as others say, propositions are already by default not able to be changed or overturned by the legislature (if they were, propositions would be pointless because any proposition the legislature wants to be law would have already been passed as a normal law, and any proposition the legislature doesn't want would be changed by the majority who didn't want the law.)
The real issue is that the court is ruling that the clause is violating the single subject rule for propositions, and is restricting the legislature from making laws that are outside the scope of what the proposition says it is about. The 7/8th thing would be fine if they were just giving a way for the legislature to amend the actual proposition... instead, it is restricting the legislature from being able to make laws that are not affecting the direct stated single purpose of the proposition.
The tool is fine, it is what the tool is being used on.
I am talking about that being a disingenuous interpretation considering other propositions do not allow the legislature to to amend their measures at all.
> If Section 7465 had not been included, the Legislature could amend Proposition 22 by a simple majority vote according to each house's rules, followed by a popular referendum. With Section 7465 enacted, the Legislature can still amend Proposition 22 by a simple majority vote according to each house's rules, followed by a popular referendum. All Section 7465 provides is another way to amend the initiative statute, albeit one that is difficult to the point of near impossibility.
> To the degree that Section 7465, subdivisions (a) and (b), attempt to apply conditions to amendments proceeding under Article II Section 10, subdivision (c)'s majority-vote-then-referendum procedure, they are unconstitutional. To avoid the constitutional conflict, the Court should narrowly construe the "seven-eighths majority" and "consistency" requirements only to the non-referendum procedures in Section 7465, subdivisions (a) and (b).
As comex notes, this is untrue. To the extent the judge considers the seven-eighths hurdle at all (which he does, but not in the significant part of the opinion), it is only to note that there's no problem with it.
Of course Californians will not give the legislature power to modify. That would defeat the point of overriding the legislature since those guys meet way more often than the every two years the voters get.
It still seems like California's process is the least democratic. It allows voters of the past to institute laws that are much, much more difficult to change than other laws.
The "Supermajority approval for ... years following" that North Dakota and Washington follow, or expiring the protection of the initiative from amendment automatically after some number of years seems appropriate.
> It allows voters of the past to institute laws that are much, much more difficult to change than other laws.
then having a constitution is a pure exercise in anti-democracy. Are we calling that "unfortunate" now?
In true democracies the constitution can be changed, and is regularly.
So basically, being a democracy and having a constitution are orthogonal.
> Loads of dictatorships and single-party oligarchies have undemocratic constitutions.
Ehh... my impression was that the bigger problem, from a standard American perspective, is that loads of dictatorships have constitutions which are everything American evangelical democracy dreams of, but which they aren't too concerned with adhering to.
In many cases the issue is opposite. Many populist autocrats abuse democracies with constitution that can be changed too easily, so after one big win in election they can dismantle all checks and balances and independent institutions in the country.
The difficulty of repealing awful past propositions like Prop 13 is down to public opinion, not procedural limitations.
If you lived through the madness, you would understand. (I can guarantee you were born after, I'm Mad as Hell!, by Howard Jarvis.
Every year taxes went up. Every year politicians squandered away that money on pet projects. Middle class residents feared tax day. I saw my dad cry once, and yes it was when he opened that tax bill from the county.
Prop 13 is the only real thing, in my lifetime, that truly helped the middleclass, and poor.
Yes---things were generally better 30-40 years ago, but don't blame our messed up society on prop 13.
Their are days where I feel we need to get rid of prop 13 for a few years, and let those that weren't born see what happens?
I have never heard anyone who lived through that time criticize prop 13, with the exception of a college professor trying to reel in young students during a lecture, or an upcoming politician trying to get young voters.
Instead of ragging on a prop that helps low/middleclass tax payers; I wish the young would go after how the wealthy around the world are buying up our homes.
With a phone call, or email, and then have the gall to leave them vacant.
To the young professional programmers. Let's be honest. You will be most likely shown the door around 50. If you happened to buy a house, you will eventually cherish prop 13.
It's really telling that Californians instead passed a terrible market-distorting ballot measure (which incentives hedge funds to buy properties to avoid the tax being readjusted again and pushes up prices so that nobody other than a hedge fund could afford them). If you're worried about affordability of houses, prop 13 (combined with NIMBYism and restrictive zoning laws in cities) is one of the main reasons why they are unaffordable.
It sounds like it didn't even register to Californians that maybe they should have voted for the other guy for a little while.
I truly think some people just don't learn from history, and look for easy targets. Targets they don't truly understand, but come of the tongue easily?
I would love to bar hedge funds, and wealthy non-citizen foreigners from buying our homes.
Put it into a Proposition, and you got my vote.
I have tried to tell young people how bad it was before prop 13, but I guess it's an easy target.
On my block, we have three homes out of twenty that are benefiting in a large way over prop 13 protections. Two of those homes rent rooms out to tenants. The rest of my wealthy neighbors don't need to worry about property taxes, or roommates.
The wealthy do not rent out rooms. They can pick up and leave whenever they want. So a large portion on my neighbors are paying not being served by prop 13, nor do they seem to need it.
In closing, and I'm getting tired of defending a prop, if CA residents ever lose their rational minds, and repeal prop 13; you got what you asked for. The wealthy, and Blackwater hedge fund types would love to snatch up those homes, and politicians would like those war chests they used to have access to in the 70's.
If you’re able to own properties and pay relatively no tax on property that’s worth 10x what you paid for it that’s an insane win.
It also lets you vote to restrict supply even further to preserve “neighborhood character” and drive prices up even higher with no consequence.
Only new people get screwed. Their own kids maybe, but they can just pass the house down and capture that wealth for generations.
Meanwhile, new owners pay insane housing prices and fund the town via their actual market value property tax, while old owners leech this value and play victim. It’s a massive wealth transfer from young to old.
With such an extreme incentive structure it’s no surprise the rationalizations of it are similarly extreme.
I wouldn’t care so much if they didn’t consistently lobby to restrict new housing supply - but of course they will because the incentives are such that there is zero downside and only upside for them to do so.
It’s frustrating to listen to someone who bought a house for 300k and pays $300 a month on property tax whine when that house is now worth $3M and their neighbor had to pay $4M for a similar property and $4k per month in taxes. You won the lottery and then warped policy to your benefit, at least be gracious about it.
It needs to be complemented by taxing actions that are speculative in nature, particularly by nonresidents.
I think something like this could work, except it would be despised by current homeowners and brokers that have a vested interest in homeowner pricing to keep going up to the stratosphere:
1)Anyone seeking to buy CA real estate is in effect subject to taxes as if he were a CA resident (with no deduction for out of state taxation).
2) create a xx% tax assessed on FV of any property beyond a 2nd, for properties not owned by a CA resident. Double the tax again for any time the property stays vacant.
Foreigners with oil money and dirty bribes can own, but not without paying taxes and also rushing to rent property out.
Since tax is based on FV, it disincentivizes owning for speculation.
Did you mean the most democratic? California's process means the legislature can't override the will of the people -- only the people can do that, through another ballot initiative.
I'm not saying it's necessarily a good thing, but California ballot initiatives are about as close to direct democracy as you can get.
Insert sound of my head imploding.
Even "democracy" is ambiguous. Representative vs direct vs participatory vs ...
We have to consider more than just the voting method. Power relationships, structure of discourse, processes for modification, ad nauseum.
My meager best effort at divining the core essence of "democracy" is "consent of the governed". Weak sauce, I know.
Which is a bizarre way of looking at referendums, as it would imply that referendums over the entire voting population are less legitimate than bills enacted by a representative body.
Many people will misunderstand what the propositions propose is one issue. I feel like most California voters I have talked to say they are confusing more than anything else. And many will not turn out to vote. So who is to say that's even really the will of the people?
But the issue being discussed is that the will of the people can change, but California ends up stuck with the decision for decades.
The reason California ends up stuck with some decisions for decades is that a majority of voters continue to like them or don't care enough to vote to change it.
At best, it can be said to be the will at a moment in time now passed. But then there are the other issues I mentioned: many voters do not understand the propositions, many do not turn out to vote, etc. So I would even doubt that it's a valid capture at a moment in time.
CA's ballot initiative process is democracy taken too far. It is close the point where democracy becomes the tyranny of the mob.
The constitution lays out the process for accomplishing things that everyone "agrees" to by living under its jurisdiction.
If you want to accomplish something unconstitutional, you can, you just have to first amend the constitution.
It seems like a direct ballot initiative is no less democratic than an indirect representative making laws to govern the people. (I think it’s more, but it surely is not less.)
You can say you don’t like a given initiative; it’s much harder to argue that the process is undemocratic.
The legislature can't override it themselves, but they can submit it back to the voters: " (c) The Legislature may amend or repeal a referendum statute. The Legislature may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without the electors’ approval."
(I) It's based on the idea of a conflict between (1) a constitutional grant of unlimited power to the legislature to "create and enforce a complete system of worker's compensation"; and (2) Proposition 22's specification that "an app-based driver is an independent contractor and not an employee or agent with respect to the app-based driver's relationship with a network company if [certain] conditions are met."
(II) It states that independent contractors are not eligible for worker's compensation because, "as presently codified", California's worker's compensation law does not apply to independent contractors.
(III) It then concludes that this language from Proposition 22 restricts the Legislature's constitutionally unlimited power "to determine what workers must be covered or not covered by the worker's compensation system".
But up in step (II), there seems to be an explicit acknowledgement that the worker's compensation system could cover independent contractors if it wanted to. If the Legislature's unlimited power to create a worker's compensation system can be used to determine whether app-based drivers working as contractors are or aren't eligible for worker's compensation, how does restricting the Legislature's ability to determine whether app-based drivers are independent contractors or employees also restrict the Legislature's ability to determine whether they are covered by the worker's compensation system?
General rule of thumb, if the constitution says "x has complete the power to do y", and you aren't x, your attempt to do so is unconstitutional even if x could simply overrule you.
At the federal level, you see this play out in things like the "dormant commerce clause" - States don't have the power to regulate interstate commerce. Sometimes they try in spaces where congress hasn't acted yet. Congress doesn't have to explicitly overrule them, they are simply unconstitutional in the first place. It's not your power to play with.
You also see it play out in congress trying to regulate for the general welfare (a power reserved to states).
In this case, if the constitution says "the legislature gets to decide who has workers comp", and they decided, and you attempt to adjust that, that's probably unconstitutional.
The 100% normal thing that would happen is a court would sever it and say "to the degree the statute tries to adjust who gets workers comp, that part is null and void ". It's just that here, the statute explicitly says "if that provision is found unconstitutional, the whole statute should be struck down". So the court did.
One side thing to keep in mind, because it often plays into these things later - when a court finds a statute unconstitutional, they are finding that it was always unconstitutional from day 0, not just moving forward. In such cases, it is considered "void ab initio" - it is like it never existed.
So assuming this holds up, the next thing that will happen is a bunch of folks will then come and file cases about what they should have gotten in the intervening time period.
(void ab initio in practice is becoming harder to manage, and arguably being moved away from, but ..)
> So your argument is about who could overrule who, but that is a secondary question.
This is related, I guess, but I see my argument as being about something different. The claim of the ruling seems to be that:
(I) The Legislature has the unlimited power to determine who does and who doesn't get worker's comp.
(II) The Legislature has, using their discretion, given worker's comp to one category of worker (employees) and withheld worker's comp from another category of worker (contractors).
(III) Therefore, no other group has the power to determine who belongs to which category, because that would interfere with the Legislature's power to determine who has worker's comp.
But I don't think this works. Suppose the Legislature managed to get Proposition 209 repealed and subsequently determined that blacks receive worker's comp and whites don't. The implication of this ruling is that an initiative defining who is black and who is white would be invalid because that would interfere with the Legislature's power to define the worker's compensation scheme they want.
And this is true in general - the Legislature's power to determine who gets worker's comp now automatically includes the power to determine who belongs to any category, as long as they first decide to award worker's comp to that category, or to withhold it from that category. [1]
I don't see why the ability to use a category when describing the worker's compensation scheme necessarily includes the very different power to take control of the definition of that category.
For a different hypothetical, suppose that all workers employed in driving were already ineligible for worker's comp. Proposition 22 then would have had no impact on who was eligible for worker's comp. There's no difficulty with a "dormant commerce clause"-style argument that it should be invalid anyway because, even though the Legislature hasn't yet extended worker's compensation to drivers, they might do so in the future. But it seems to me that, in order to make that argument, you would first have to argue that it is impossible for the Legislature to extend worker's compensation to independent contractors -- otherwise, what's the difference between discretionarily extending worker's comp to driving employees before Prop 22 and discretionarily extending it to driving contractors after Prop 22?
[1] I'm having difficulty forming the hypotheticals I really want because the body given unlimited power over worker's comp in this case is the official legislature, which tends to make examples sound less ridiculous than I think they should, as the legislature already possesses most other legislative powers. But with so much being rested here specifically on their power over worker's comp (since that power is immune to statutory propositions and most others aren't), I think it's worth separating them conceptually. What if the constitution endowed a separate body, the "California Worker's Compensation Authority", with this plenary power? Then by this ruling, the official legislature would no longer have the power to define who is an independent contractor and who isn't -- that would interfere with the constitutional grant of authority to the CWCA. But I suspect the CWCA also wouldn't have the power to define who is an independent contractor. Who would?
When framed this way, this is precisely one of the kinds of "who has what power" issues and what happens when someone else tries to do something that often comes up.
Congress uses its power to create groups A and B who are taxed different (or whatever).
The groups are never perfectly well drawn.
A state comes along, and takes some folks in the "grey area", and says "yeah we're just gonna say that these folks are in group B"
(I use congress and the states because they are easy to think about, but feel free to substitute any two groups that have explicit separation of powers)
In that case, and in your first case, the answer is "you probably can't do that".
To start with, again, the normal resolution would be for the court to simply say "you can say what you want but you can't affect who gets worker's comp by what you say - period. It's not your power". The court is literally disallowed from doing this in this case
But to dive into it: "I don't see why the ability to use a category when describing the worker's compensation scheme necessarily includes the very different power to take control of the definition of that category."
It only does to the degree necessary to effectuate the scheme and normally would only apply to the scheme (unless said otherwise). Again, the normal path would be to interpret the provision in a way that does not cause constitutional issues, or to sever it. But prop 22 doesn't allow this.
So normally, the court would say "to whatever degree this provision attempts to control who has workers comp, it fails at that. No matter what exists now or in the future, only the legislature gets to decide who has workers comp. To the degree the provision has any other effect, it still does".
But again, it can't here. So it appears weird in that it appears to grant one group more power. But it's not, really. It's really saying "you won't let us sever or reinterpret this, so we aren't"
FWIW - You can make arbitrarily close calls here that rub people either way.
For example - imagine the statute said "once in your lifetime, you enter your name into a computer and 1 in a trillion times it says no. If it says no, you are in group B. Otherwise, nothing happens".
This has no effect 99.9999999999% percent of the time.
It still would be struck down (and my experience is it also feels "wronger" to people than your version).
To both your hypotheticals, for starters you are taking them farther than they normally would go in most states/etc. California is a little weird here.
In the first one, in federal court, and most states, if it had no effect, you wouldn't have standing to challenge it at all, and in most places, standing is a jurisdictional bar (IE without standing, the court literally does not have the power to hear your case).
California does not consider standing a jurisdictional bar, so it may hear it anyway. So you could end up in a case in california about something that has no effect, but it would not really happen elsewhere.
The next thing that would happen is to determine who has the power to regulate this area, and have they regulated. If it's not you, and they have regulated, you generally can't do much of anything (this is not perfectly true, but we'll dive very far into esoterics too quickly) This is where your first hypothetical will likely get knocked out. If it's not your power to exercise, you don't get to say anything about it. The court will try to ensure it interprets things in a way to cause the least "destruction of statutes" as possible, but you don't get to say anything about it. It may do that by determining you have had no effect, etc. But it will often do it by removing the section that says anything, even consistent. This is because it avoids issues later on when the group with the power to define the scheme changes it. Otherwise, everyone will be back in court saying "well, this other things says this", and the court will have to decide again "yeah, again, they don't have the power to change that".
In the second hypothetical you give, that body actually would have the power to define who is an independent contractor for the purposes of worker comp. It will in fact, get to define everything it wants to define for the purposes of workers comp. None of those will have any effect outside of workers comp. and nobody could affect their definitions as-applied to workers comp.
So to the degree the legislature's definition of something affected workers comp, it would be held to not affect workers comp :) Or it would be held entirely unconstitutional if they had an explicit no-savings clause.
It's not infrequent to see definitions that change depending on agency context and use and power because of this happening.
For example, defining "spouse" for the purposes of federal railroad benefits vs "spouse" for the purposes of "family medical leave" vs "spouse" for the purposes of immigration law vs ....
The difficulty I have is that, as far as I can see, this step didn't happen. The groups were always defined by the states, and then Congress decided that they should be taxed differently.
I don't have a good grasp of which actual bodies hold which actual powers, so I'm going to continue talking as if this were a conflict between the formal legislature of California and the hypothetical CWCA.
There is a body of statutory law that defines the statuses of "employee" and "independent contractor". This body of law was amended by AB5. The two statuses have a variety of effects, such as tax withholding/prepayment requirements. I think this must be established by the legislature using its general legislative powers.
The CWCA has plenary power to create an arbitrary system of worker's compensation. It can do that however it likes, and it has chosen to do it -- in part -- by making reference to the statutory definitions of "employee" and "independent contractor".
As I read the (actual) ruling, the (hypothetical) CWCA's discretionary choice to make reference to the statute defining the status of "independent contractor" has now prohibited the legislature from amending that statute, despite the fact that writing the statute was within the legislature's power.
In particular, we don't see this:
> It's not infrequent to see definitions that change depending on agency context and use and power because of this happening.
> For example, defining "spouse" for the purposes of federal railroad benefits vs "spouse" for the purposes of "family medical leave" vs "spouse" for the purposes of immigration law vs ....
The CWCA could write a regulation that said "for all purposes relating to worker's compensation, an 'independent contractor' is defined as follows...", but they didn't. Instead, they have one that says "our regulations use the term 'independent contractor' as defined in §2750 of the Labor Code".
Given that body of CWCA law, I don't see how the legislature can be prohibited from amending §2750. Doing so will change the effect of the CWCA's regulations as presently codified. But that's just what happens when you make reference to an external standard. Even if you have absolute power over worker's compensation, once you use that power to delegate a definition to some other body, your absolute power cannot prevent that body from changing their definition. You won't have truly absolute power until you rescind the delegation of authority.
Going back to your example:
> Congress uses its power to create groups A and B who are taxed different (or whatever).
> The groups are never perfectly well drawn.
> A state comes along, and takes some folks in the "grey area", and says "yeah we're just gonna say that these folks are in group B"
The situation we have here seems to correspond to this:
1. Congress intends to use its power to tax lawyers differently. Perceiving a crippling lawyer shortage, they issue a law providing for a refundable tax credit of $1000 to "anyone licensed to practice law", which is a decision made at the state level.
2. Wyoming, also perceiving a crippling lawyer shortage, responds by amending their license requirements to require nothing more than an $800 one-time fee. Pay $800, and you're licensed to practice law in Wyoming.
3. Wyoming's amendment to its own licensure regime is legally blocked due to the conflict with Congress's taxing power.
What am I missing? I don't think step 3 could really happen, but I don't see the difference.