California's Supreme Court heard oral arguments May 28 in Tuolumne Jobs & Small Business Alliance v. Superior Court, preparing to resolve a split between state appellate courts on when a developer's use of the ballot initiative petition process has demonstrated sufficient voter suport to substitute for CEQA review.
The case most directly concerns a proposed Wal-Mart expansion in the Tuolumne County town of Sonora. The outcome could have statewide effects on a tactic allegedly used by Wal-Mart in several towns: qualifying a ballot measure for a costly special election as a way to pressure local officials into approving projects.
Under Cal. Elections Code Sec. 9214, if 15% of a city's voters sign an initiative petition, the governing legislative body must either "adopt the ordinance, without alteration" or place it on the ballot.
In 2010, proponents of the Sonora Wal-Mart expansion qualified an initiative for the ballot supporting a specific plan to authorize the project. The Council chose to adopt the text of the initiative as law rather than send it to a vote. In dispute was whether that decision required CEQA review.
The San Francisco Daily Journal reported the high court "appeared skeptical of arguments" supporting the prior ruling, by the Fifth District Court of Appeal, that CEQA review was still required after the Sonora council adopted the petition.
The petitioners, Tuolumne Jobs & Small Business Alliance (TJSBA), wrote in their final brief to the high court that the "ploy" in Sonora of Walmart and its proponent James Grinnell "appears to be part of a larger statewide strategy to force financially downtrodden communities into approving their development projects without CEQA compliance, without discretionary review, and without an election by presenting approving the Initiatives as the lesser of two evils."
Accordingly TJSBA argued public policy should not allow CEQA review to be replaced by a presentation of 15% of a town's registered voters' signatures plus the sympathy of a local legislative body.
The "statewide strategy" claim in TJSBA's brief cited to a broken SFGate link, but apparently referred to a report by Will Evans of the investigative news project California Watch, published in the San Francisco Chronicle in 2011. Evans' report suggested Walmart had been whipsawing local governments by gathering signatures to pressure them into either approving a project verbatim as proposed, without CEQA review, or spending public funds on a special election. See http://www.sfgate.com/bayarea/article/Walmart-wins-big-with-California-initiatives-2291127.php.
The last pre-hearing brief by Wal-Mart's attorneys in the matter, of K&L Gates in San Francisco, accused TJSBA of "completely" ignoring legislative histories of the initiative process and of CEQA, and of using public policy arguments to distract from harm threatened by the Fifth District's position to the core functions of the initiative process and the core First Amendment rights of the voters who signed initiative petitions.
Grinnell's counsel complained further of "the use of an irrelevant newspaper article to somehow impune (sic) the motives of the Initiative proponent and the voters who signed the Initiative petition."
Wal-Mart's and Grinnell's briefs argued that authority descending from Associated Homebuilders, Inc. v. City of Livermore (1976) 18 Cal. 3d 582 established that once a proponent obtained a 15% signature tally for an intiative proposal, CEQA review requirements no longer applied to it. They argued this shut-out was constitutionally necessary to avoid second-guessing the wishes of the petition signers.
The Fifth District court, in its 2012 opinion, had called for more substantial review than a 15% voter approval: either a CEQA process or an election. That opinion, by Justice Rebecca Wiseman with concurrences by Presiding Justice Brad R. Hill and by Justice Stephen J. Kane, warned: "Developers' strategy of obtaining project approvals without environmental review and without elections threatens both to defeat CEQA's important statutory objectives and to subvert the constitutional goals of the initiative process."
According to the Fifth District, the Sonora council was already considering an EIR for the Wal-Mart expansion, but put the approval vote on hold to consider the ballot measure, and having adopted the ballot measure it did not approve the EIR. The Fifth District would have sent the matter back to the city for further environmental review.
(Evans' article viewing the Fifth District's Sonora decision as a setback for Wal-Mart's statewide strategy is at http://californiawatch.org/dailyreport/win-environmental-law-loss-wal-mart-18670.)
The Fourth District's 2004 opinion, by Justices Rylaarsdam, O'Leary and Fybel, had taken a directly contrary position in Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961. (See CP&DR's summary at http://www.cp-dr.com/articles/node-547.) That decision treated the role of a city council, once presented with a qualified voters' petition, as merely ministerial -- a mandatory, automatic function, hence CEQA-exempt. The Fifth District opinion asked how that could be so if the council still held the power to choose between adopting the measure or placing it on the ballot. But the Fourth District opinion had asked how the council's function could be other than ministerial if the wishes of the petition signers were to be respected.
(The Burke, Williams & Sorensen firm in 2013 posted an analysis on the conflict of authority as it stood after the Fifth District decision at http://bit.ly/UlWsKa. William Abbott of Abbott & Kindermann analyzed the case for CP&DR at http://www.cp-dr.com/articles/node-3298.)
The Fifth District opinion interpreted a prior State Supreme Court case, Friends of Sierra Madre v. City of Sierra Madre, (2001) 25 Cal.4th 165, together with CEQA Guidelines Sec. 15378(b), as saying a referendum initiated by a petition -- as opposed to one initiated by a public agency -- could be a way past the trouble and expense of an EIR process under CEQA. Thence it took the backhanded implication that a petition without an election was not sufficient to substitute for the administrative review process.
Grinnell's final reply brief argued on the contrary that the Sierra Madre case addressed only the need for CEQA review of a city council's decision to place its own measure on a ballot. It argued the authority of a city council was not comparable to the reserved power of "the people" to "tear through the exasperating tangle of the traditional legislative procedure and strike directly towards the desired end" by bringing an initiative. And in such a case, it argued, the council acted only as "the ministerial agent of the electorate."
TSJBA argued, "The results of an election represent the will of the people. A petition signed by 15 percent of the voters does not."
Grinnell answered that the reserved initiative power "is not only manifest when an election is held," but also is manifested in "the right to have a duly-qualified, voter-sponsored initiative immediately passed by the local agency".
The parties' papers concluded with project proponents exalting the rights of petition signers to be heard and project opponents presenting CEQA as a shield for city councils against corporate bullying.
The California Supreme Court docket for the case is at http://bit.ly/Um828m. The prior Fifth District decision is at http://www.courts.ca.gov/opinions/revpub/F063849.PDF. Links to full texts of briefs to the California Supreme Court are at http://www.courts.ca.gov/25993.htm.
[Disclosures: Martha Bridegam worked briefly for a legal team suing Wal-Mart several years ago.]
