Government
Feb. 24, 2004
Wal-Mart Initiative Subverts Democracy
Forum Column - By Erwin Chemerinsky - California's initiative process has been the subject of scrutiny in recent years because many have come to wonder whether the endless stream of ballot measures is advancing democracy or eroding it. There is no question that the initiative and accompanying reforms have often served their original purpose of counterbalancing corruption by government or big business.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
California's initiative process has been the subject of scrutiny in recent years because many have come to wonder whether the endless stream of ballot measures is advancing democracy or eroding it. There is no question that the initiative and accompanying reforms have often served their original purpose of counterbalancing corruption by government or big business. But increasingly the initiative process has become an instrument of powerful interests that are all too eager to subvert the rule of law while hiding behind the fig leaf of democracy.
A particularly egregious case is the ballot measure slated to go before Inglewood voters on April 6. The initiative is sponsored by Wal-Mart, and, if approved, would allow the company to build a huge commercial complex dubbed "Home Stretch at Hollywood Park" adjacent to the Hollywood Park racetrack in Inglewood with no environmental review and no city controls.
Upon first glance, the initiative might seem perfectly suitable for a vote of the people. Wal-Mart and its backers contend that the initiative allows voters to decide whether they want a Wal-Mart in their city. What Wal-Mart doesn't reveal is that the initiative is not merely an up-or-down vote on whether the company can build the store. Rather, the initiative would approve a very complex development plan, laid out in the 71-page initiative, complete with "uses, development standards, criteria, design, signage and landscape requirements, subdivision requirements, review procedures, exactions, mitigations, and other requirements."
Under California law, such development plans are subject to the scrutiny of planning agencies and to public review. And for good reason - without such oversight, there is no way to protect the public interest on such critical issues as noise, traffic, pollution and other public health and environmental issues.
Opponents believe the initiative would establish a new and dangerous precedent by permitting a huge commercial development to be built without any of the public planning safeguards that govern such projects. They charge that the Wal-Mart initiative is an unlawful and unprecedented attempt to avoid a review by city planners and public hearings, in order to seize the administrative powers of the City Council, avoid California Environmental Quality Act requirements and shield the project from any future control.
Opponents of Wal-Mart's initiative argue persuasively that the initiative violates the California Constitution in a number of ways.
First, the initiative is designed to benefit a private corporation, Wal-Mart, and one of its retail divisions, Sam's Club. Article II, Section 12 of the California Constitution forbids such attempts, stating that, "No amendment to the Constitution, and no statute proposed to the electors by the Legislature or by initiative, that names any individual to hold any office, or names or identifies any private corporation to perform any function or to have any power or duty, may be submitted to the electors or have any effect."
Second, the initiative requires that any future amendment to the "Home Stretch at Hollywood Park" specific plan must be enacted by a two-thirds vote of the electorate. This provision violates California Constitution, Article II, Section 10, Subdivision (a), which stipulates that "[a]n initiative statute or referendum approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise."
Third, the initiative extends beyond legislative approvals to the arena of administrative procedures. Opponents of the initiative rightly acknowledge that the adoption of both general and specific plans are considered legislative acts. However, they correctly argue that the development plan in the Wal-Mart initiative attempts a project approval that can only legally be achieved through administrative actions.
In Article IV, Section 1, and Article II, Section 11(a), the California Constitution makes clear that the initiative process is limited to legislative actions, and cannot be used for actions that require a quasi-adjudicatory or administrative process.
Opponents also correctly assert that the approval of a property subdivision, a plan for a development that is in a redevelopment area and the relaxation of street easements are all administrative acts, which are not the proper subject of an initiative.
Given these multiple constitutional violations, the pre-election review of the Wal-Mart initiative called for by opponents is entirely appropriate. As opponents point out, courts recommend pre-election review for initiatives whose validity is in serious question. This is certainly the case with the Wal-Mart initiative, which illegally seeks to benefit a specific corporation and mandates actions that are fundamentally beyond the scope of the electorate's authority.
No doubt anticipating that its initiative would be subject to legal challenge and that the courts would strike down at least some provisions, Wal-Mart included a severability clause. But severability cannot apply to pre-election review. If provisions of an initiative are determined to be illegal in a pre-election review - as they clearly should be with the Wal-Mart initiative - then the election should be canceled. Otherwise, as opponents argue, voters may well make their decision based on provisions that will never take effect.
The initiative's severability clause is problematic for another reason: removal of the illegal provisions strips the measure of its viability. This fact underscores the need for a pre-election review because Wal-Mart cannot reasonably argue that if approved by voters the initiative would take effect even if certain provisions were struck down.
In using the initiative process to try to bypass the public review process, Wal-Mart has not only demonstrated its contempt for the rule of law but has shown once again how special interests are tarnishing California's proud tradition of ballot measure democracy.
This initiative should be set aside by the courts before it is put to the voters, whose trust in the sanctity of our electoral system should not be further compromised by an illegal and ill-advised power grab.
Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at USC Law School.
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