This article originally appeared in The Recorder on July 9, 2012.

Both loved and loathed, California’s ballot initiative process hit the century mark last year. Since 1911, the state’s adventure in direct democracy has netted more than 42 constitutional amendments and 64 state laws, leaving little doubt that initiative voters constitute a fourth, co-equal branch of California’s government. Property taxes, term limits, capital punishment, medical marijuana, gay marriage, stem cell research, environmental protection and other staples of law and policy that millions of Californians take for granted have come about through the initiative process. 

But the fourth branch is still beholden to the third branch, at least for the moment, and in 2012, the California Supreme Court issued three decisions involving new ballot initiatives that could have extraordinary long-term consequences for the state over the coming years and decades. 

Gerrymandered Elections 

In Vandermost v. Bowen, the court gave its blessing to Propositions 11 and 20, passed in 2008 and 2010, which removed from the Legislature’s authority the task of drawing electoral maps that divide the districts that individual legislators compete for in state and federal elections. Historically, the Legislature drew those maps itself, usually after the decennial national census, and the temptation to draw them to favor the party in power that year always proved intoxicating. By dividing up neighborhoods that support an opponent, separating racial and ethnic communities, and even employing sophisticated computer-aided electoral modeling, legislators long relied on gerrymandered redistricting to contort districts into whatever shapes would best ensure their top legislative priority: keeping their jobs. 

In 2008, California voters modified the Constitution to hand redistricting powers to an independent commission made up of citizens, retired judges, law professors and other nonpolitical actors, equally divided between Democrats, Republicans and independents. They confirmed that decision in another referendum in 2010. The Citizens Redistricting Commission went to work, and developed proposed redistricting plans that redrew nearly every district’s boundaries and threw scores of long-protected incumbent seats into contention. 

Overall, state electoral experts concluded Republicans would likely see a net loss of seats from the new maps, and a handful of California’s GOP legislators began another ballot initiative drive to repeal the commission’s authorization. At the same time, they filed suit in the state Supreme Court to prevent the use of the commission’s new maps in the 2012 election. The court took the case in an original writ proceeding due to the effects of the uncertainty in the coming race. 

The court weighed a number of maps proposed by the challengers, along with the commission’s, to determine which best effectuates the principle of “one person, one vote” embodied in the California Constitution and the constitutional requirement that districts be contiguous and reasonably divided. The court concluded that the commission’s maps best met those criteria and were least skewed in favor of protecting incumbent legislators. Accordingly, the court held that the commission’s maps are valid and should be employed in the 2012 election, even if the repeal initiative qualifies for the ballot. It also rejected the argument that the initiative proponents must show they are “likely to qualify” for the ballot to have standing to challenge redistricting maps, virtually guaranteeing a court challenge to every future remapping effort. 

While the court’s decision firmly stamped the commission with a judicial seal of approval, and all the institutional authority that it conveys, proponents of structural government reform suffered a bigger defeat at the hands of a still-smarting Legislature: the Citizens Redistricting Commission has been defunded, and shuttered operations as of June 30. Defending Initiatives 

In Perry v. Brown, the California Supreme Court got its bite at the federal civil rights suit filed in the U.S. District Court for the Northern District of California by Theodore Olson and David Boies on behalf of plaintiffs challenging Prop 8, which rewrote the state Constitution to define marriage as between one man and one woman. The plaintiffs argued the state’s prohibition of same-sex marriage violates the equal protection and due process clauses of the U.S. Constitution. 

Faced with the suit, the state’s elected executives with authority to defend state law in court — Governor Arnold Schwarzenegger, former attorney general (now Governor) Jerry Brown and AG Kamala Harris — refused to defend Prop 8, determining from their own analyses that the law failed to meet federal constitutional scrutiny. Accordingly, the district court allowed the initiative’s backers and an anti-gay marriage advocacy group to intervene to defend the law, after the plaintiffs made no objection to their motion seeking to do so. 

After a lengthy bench trial, the district court found the defendants articulated no rational basis for a constitutional amendment which eliminated the right of homosexuals to marry. Accordingly, it found Prop 8 violated the federal Constitution, a ruling that if affirmed would effectively legalize gay marriage in California once again. 

The intervenors appealed the district court’s ruling to the U.S. Court of Appeals for the Ninth Circuit. Although the district court had permitted intervention in part because the plaintiffs simply did not object, the Ninth Circuit faced the task of independently ensuring the parties to the appeal, including the intervenors, had standing. Concluding that California law was not clear whether a ballot initiative’s backers have standing to defend the initiative if the state’s official actors refuse to do so, the Ninth Circuit certified the question to the California Supreme Court. 

In a ruling that closed a gaping loophole in the initiative process and trumpeted the importance of the fourth branch to California’s unique form of balance of powers, the court held that the backers of a duly enacted ballot initiative indeed have standing to participate in the legal defense of that initiative when the state’s officials fail to do so effectively. The court explained that because an initiative constitutes the voters’ circumvention of the ordinary legislative process, the initiative’s backers may represent the peoples’ interests with more “vigor” than elected officials who had no role in the measure. The court explained that allowing intervention helps “guard the people’s right to exercise initiative power,” because if the proponents could not intervene, elected officials could effectively hold veto power over any voter-approved initiative by refusing to defend it in court and taking a default judgment. 

After the California Supreme Court found the initiative’s backers had standing under California law to defend the measure, the Ninth Circuit went on to affirm the district court’s ruling in Perry, albeit on narrower grounds that focused on California’s particular experience. In June, the Ninth Circuit denied en banc review, so only the U.S. Supreme Court awaits. 

Undoing Redevelopment 

In California Redevelopment Association v. Matosantos, the court wrestled with a state budget-balancing measure that, in one fell swoop, eliminated the state’s 400-odd redevelopment agencies, which together wielded budgets amounting to 12 percent of the state’s property taxes and employed 40,000 Californians. Some of the eliminated redevelopment agencies had operated for more than 50 years, and 2010’s Prop 22 had seemed to secure their funding by amending the state Constitution to prohibit the state from requiring redevelopment agencies to pay into the state’s general fund. 

California’s experiment with community redevelopment agencies began in 1945, when rationing of materials and loss of manpower to the war effort meant changes in the demographics of California’s towns and cities. Depression-era slums in the largest cities festered during the war, while housing vacancies from Japanese internment and displaced military personnel had opened the way for African-Americans to move into previously unwelcoming neighborhoods. Returning GIs, eager for the homes, in which they would rear the Baby Boom generation, sought to reclaim these “blighted” areas for themselves. 

To that end, the California Legislature passed the Community Redevelopment Act to spur development and help private developers employ eminent domain procedures in areas that city officials deemed in need of economic improvement. Most importantly, the act and subsequent laws froze property tax assessments in areas designated by local governments as “redevelopment zones,” and required, with only some restrictions, that future increases in the assessed value of those properties be given to the redevelopment agencies on the theory that the agencies’ actions were responsible for the increase. 

In 1978, California voters passed Prop 13, which capped property taxes and transferred their collection from local governments and state subdivisions to the state itself. In the process, Prop 13 created a dynamic by which local governments and state agencies competed for a piece of a much smaller tax pie; to raise revenue, local governments no longer simply bumped property taxes, but were forced instead to shift funds from one division to another. Because redevelopment agencies were locally run and could keep property tax appreciation for themselves, they became one of the most well-budgeted arms of many local governments, generating more than $6 billion annually for the agencies. 

Some redevelopment agency projects are credited with marked success, revitalizing such neighborhoods as San Diego’s Gaslamp Quarter, Old Pasadena, downtown Los Angeles and the South of Market and Mission Bay districts in San Francisco. But with little oversight, large budgets and middling success in many other redevelopment efforts, critics alleged that redevelopment agencies primarily served as local slush funds that at their best funneled redevelopment money to other city expenses, and at their worst operated as vehicles through which elected officials curried favor with friends and donors and extracted rents. In the decades since Prop 13, the Legislature repeatedly sought to rein in redevelopment agencies by requiring they transfer excess funds to the state, but voters kiboshed that technique with 2010’s Prop 22, which amended the Constitution to prohibit the Legislature from requiring that redevelopment agencies transfer their funds to the state or its agencies. 

In 2011, as the state faced a $25 billion revenue shortfall, Governor Brown declared a state of fiscal emergency and proposed a budget that, among other cuts, eliminated state redevelopment agencies in their entirety, except for communities that agreed to make payments to a fund for schools on the agencies’ behalf. After the Legislature approved Brown’s budget, a coalition made up of hundreds of redevelopment agencies, city and county governments and other affected interest groups sought a writ enjoining the dissolution of the agencies, in part on the ground that Prop 22’s prohibition on transfer of redevelopment agency funds necessarily presupposed such agencies will continue to exist, and that the exception for communities that transfer funds to the state directly violated Prop 22. 

The Supreme Court rejected the first argument. Prop 22, the court explained, said nothing about redevelopment agencies enjoying perpetual existence, but addressed only what the Legislature could order existing and future redevelopment agencies to do with their money. The agencies themselves were “creatures of legislative will,” and because the Legislature authorized their existence, it could de-authorize their existence — as with any other municipal corporation, at its sufferance. The court accepted the second argument, however. It held that the text and spirit of Prop 22’s prohibition on legislative redistribution of redevelopment agency funds prohibited the state from conditioning the continued existence of the agencies on whether their sponsoring community paid into a state-mandated fund to serve the state function of operating schools. 

As a result, all state redevelopment agencies have begun to wind down (some leaving significant debts), with only already-approved redevelopment projects continuing to completion. What that means for California’s cities and blighted communities remains to be seen. 

More than anything, the Vandermost, Perry and Matosantos cases make clear that the fourth branch of government is as coequal as the others in California, thanks in no small part to the 2011-12 Supreme Court term.

Ben Feuer is a civil appellate attorney in San Francisco and a founding member of the California Appellate Law Group*. He is the chair of the appellate section of the Bar Association of San Francisco’s Barristers Club and formerly served as a law clerk on the U.S. Court of Appeals for the Ninth Circuit. More information about Feuer is at

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

This article is copyright © in the year of publication above.