Amicus Brief filed by Prof. Michael Salerno referenced in California Supreme Court decision on Advisory Ballot Measures

Professor Michael SalernoIn August 2014, the California Supreme Court took an unprecedented step: It removed Proposition 49 from the November ballot, a measure proposed by the state legislature, by a vote of 6 to 1.

The measure would have asked voters if Congress should propose a constitutional amendment overturning the U.S. Supreme Court’s controversial 2010 Citizens United v. FEC decision, which allows unlimited corporate spending in political campaigns. In keeping the advisory measure off the November ballot, the court cited “uncertainty” about its legality.

“The new standard of uncertainty” recalls UC Law SF clinical law professor Michael Salerno, “was not only a relaxation of what the court previously required to keep any measure off the ballot, it was the first time in California history the court removed a measure proposed by the legislature, a coordinate branch of government. This is the most significant separation of powers cases to come before the court in at least 50 years.”

On Monday this week, in Jarvis vs. Padilla, the court reversed course, deciding 6 to 1 that the Citizens United measure should not have been removed from the ballot, referring to arguments in an amicus curiae brief from the UC Law SF’ Center for State and Local Government Law.

Prof. Salerno, who directs UC Law SF’ legislation clinic, filed the brief in January 2015, with Steven Bonorris, interim executive director of the Center for State and Local Government Law, and graduate research fellow Nedda Black. They argued the Legislature may propose advisory measures and statutes to the voters, without constitutional “authorization,” because state constitutions, unlike the federal constitution, are limits rather than grant powers, and the California constitution does not limit these actions.

The brief pointed to California’s history of the legislature involvement with the initiative process, and noted it potential “mix-and-match” approach to state lawmaking, involving both citizens and legislators acting through the ballot. “I think proponents of initiative measures and the legislature should be encouraged to work together to thoroughly vet proposals, refine, and improve them,” Prof. Salerno said, provided the proponents have the right to have their original measure on the ballot if the proponents and legislature cannot reach agreement. In this instance, if the legislature places a competing measure on the ballot, the voters have a greater choice.”

Prof. Salerno spent more than 25 years working with California’s legislature, primarily with the state’s Office of the Legislative Counsel. From 2007 to 2008, he was executive director of the California Fair Political Practices Commission. He coauthored, with Professors Joseph Grodin and Darien Shanske, The California State Constitution, Second Edition (Oxford University Press, November 2015).