Grodin Says Runaway Con Con Not a Problem

May26

Despite fears of a “runaway convention,” the preeminent authority on the California Constitution believes a constitutional convention to revamp state government could be restricted to address only specific, limited issues.

A principal concern about the wisdom of amending the constitution by convention, a proposal that has gained attention amid continuing political and fiscal gridlock in Sacramento, is that once a constitutional panel is formed, its members could open a Pandora’s box of contentious, ancillary issues.

But former California Supreme Court Justice Joseph Grodin, professor emeritus at Hastings College of Law and co-author of “The California State Constitution: A Reference Guide,” told Calbuzz his preliminary legal research suggests otherwise.

“While there is no California authority, in other states courts have recognized the principle that a constitutional convention may be limited as to subject matter if the limitation is approved by the people,” Grodin said in an email.

Grodin’s comments are significant, not only because of his legal stature but also because they affirm the view of experts at the Center for State Constitutional Studies at Rutgers-Camden, who have advised the Bay Area Council, which is aggressively promoting a constitutional convention plan.

In an interview, Grodin said he is fascinated by the issue of a constitutional convention and has urged his colleagues at Hastings to institute a fall seminar for law students to study case law and host a conference, in order to provide legal leadership on the subject.

The Bay Area Council has outlined four areas it believes need to be addressed (quoted here from its website)

• Governance, including the structure of the legislative and executive branches of government, with the latter to include State agencies and commissions.
• Elections, including the initiative and referenda processes, campaign finance, and term limits.
• The Budget, including the budget process and related requirements, such as the 2/3rds legislative vote required to pass a budget, the term and balancing of a budget, and mandated spending.
• Revenue distribution, including the revenue relationship between local and state government.

Others have suggested that once a convention is called, it could be pushed to address other issues such as gay marriage, abortion rights, prayer in school, immigration, the death penalty, press freedom or other significant but divisive topics not directly related to basic governance.

For example, Calvin Massey, Grodin’s Hastings colleague and co-author, warned that an argument can made that a convention, once assembled, “is entitled to propose what it wants . . . everything’s up for grabs . . . The brake on this is the good sense of the conventioneers to address the issues that need to be addressed” to ensure that whatever they produce could be approved by a majority of voters.

As this would be the first constitutional convention in more than a century, the issue has not been tested in California. As the BAC notes:

“California has had two previous constitutional conventions: in 1849 and in 1878, which produced our current system. In 1962, the constitution had grown to 75,000 words, which at that time was longer than any other state constitution but Louisiana. That year, the electorate approved the creation of a “California Constitution Revision Commission,” which worked on the constitution from 1964 to 1976.

“The legislature placed revisions emanating from the Commission on the ballot. The electorate ratified the Commission’s revisions in 1966, 1970, 1972, and 1974. In the end, the Commission managed to remove about 40,000 words from the constitution, but otherwise made only minor changes.”

Grodin, however, suggested that legal precedent elsewhere suggests limits are possible. In an email to Calbuzz, he wrote:

“I have done some preliminary research which shows that while there is no California authority, in other states courts have recognized the principle that a constitutional convention may be limited as to subject matter if the limitation is approved by the people, as would be the case in California if the Legislature (by 2/3 vote) placed on the ballot a provision for a limited constitutional convention that was approved by the people, or if the state constitution were amended to allow the people to propose a constitutional convention by initiative, and the initiative called for a limited convention.”

“The question remains how that limitation would be enforced in the event the delegates to a convention exceeded the limitation. There is some authority (again, in other states) that in such a situation a court might intervene to prohibit voting on revisions that exceed the limitation.”

Alan Tarr, professor of political science at Rutgers and director of the state constitutional center there, agreed with Grodin’s analysis:

“Typically, in most states, there is no barrier to limiting a constitutional convention,” he said. “There’s no legal obstacle to it.”

Moreover, he noted, to his knowledge there has never been a “runaway convention.” Sometimes members are required to take an oath pledging to adhere to the limitations in the convention call. In addition, the chair of the convention can use the authority to declare extraneous issues out of order.

The Bay Area Council’s strategy for calling a convention is:

1. To ask the Legislature to place a call for a convention – with specific subjects on the agenda – on the ballot it 2010. This procedure, the only method spelled out in the California Constitution, would require a two-thirds vote of the Legislature.
2. If the Legislature is unable or unwilling to reach a two-thirds consensus, the Bay Area Council will seek signatures to qualify two ballot measures: A) amending the constitution to permit voters to call a constitutional convention by initiative and B) calling the constitutional convention itself. These would require a majority vote.

There are a variety of methods for impaneling constitutional conventions, but the system favored by the Bay Area Council, at this point, would be to use a random selection of registered voters, much like a jury-selection process.

Detail about precedent on these issues may be found in The Law of Limited State Constitutional Conventions at the Rutgers site.


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There are 11 comments for this post

  1. avatar The Rev. James Richardson says:

    A constitutional convention for California is the latest pie-in-the-sky absurd idea coming down the freeway that at best is a summer distraction. Why would anyone think impaneling a random selection of voters like a jury pool would fix California’s governance issues? Who would be leading them? The Bay Area Council? And who says they won’t take on abortion, gay marriage, toxic waste, the Lottery, hunting regulations, ostrich farming and red light cameras. If they do, who stops them? The Bay Area Council?

    If the problem is the two-thirds rule to pass a budget, then address head on. Go to the ballot to repeal it. And that might not be necessary. There is a way to pass a budget and “fee increases” with a majority vote, and legislative leaders were on the verge of doing just that until the governor said he would veto it. The Legislature could do it tomorrow and dare the governor to veto it. No constitutional convention required. Which brings me to this:

    There is nothing wrong with California’s government that cannot be fixed by a competent and courageous governor and Legislature. Put it square where it is. If the Bay Area Council of Government wants to fix California, put up a candidate for governor who will. Maybe they’d like to pick the candidate out of a random pool of voters?

  2. avatar wmartin46 says:

    When the current US Constitutional Convention met, men like Alexander Hamilton, George Washington, George Mason, Benjamin Franklin, Gouvener Morris, Robert Morris, Thomas Jefferson were available to craft this most marvelous of documents. Looking around the political landscape here in California, who do we see? Great moralists like Gavin Newsome? Or gun control advocates like “pistol-packin’” Don Parata? Or the consummate California politician: “Slick Willey” Brown? Or ex-Governor “Moonbeam”?

    California has been so fragmented, North vs South, Government vs “We The People”, Rich vs Poor, Unions vs the rest of us, it would be impossible to elect anyone to attend such a Convention, and believe anything any of these people said before the Convention.

    Not being able to trust even one State-wide politician probably means that democracy in California is “down for the count”. This happened in Rome, a long time ago, so there’s no reason not to expect it to happen here.

    The ballot process can fix anything that needs to be fixed in our Constitution–giving everyone who choses to vote a say in the matter.

  3. avatar Anonymous says:

    I like the idea of a constitutional convention but it needs to be composed of intellectuals from out institutions of higher education who specialize in California politics, business leaders from California’s leading industries, constitutional lawyers and law professors, and possibly some kind of citizen representation. There should be no majority of any single group so as to encourage cooperation and consensus building. A constitutional convention is what is needed but there should be no area off limits to reform. And I’m sorry, but a citizens group without special knowledge will only ensure a complete disaster.

  4. avatar Anonymous says:

    Regardless of anyone may think about the Constitutional Convention, it’s a big idea. Hats off to the Bay Area Council for advancing it. They have quickly become the most important business association in the Bay Area and probably the state, eclipsing the LA Chamber.

  5. avatar Anonymous says:

    To those who say there is nothing the ballot initiative can’t fix, let me point out it is ballot initiatives that created this soup: Prop 13 with its tax inequities (you heard me right), Prop 98 with its logrolling for teacher’s unions, the state Lottery (brought to you by initiative) and host of other initiatives that seemed like such fabulous ideas at the time but that have locked up the budget process. Through in the prison construction program, at the behest of the prison guard union, and a governor who loves playing the role but is basically lazy and intellectually light, and you’ve got the mess we are in. Explain to me how a constitutional convention will fix all that and you will make me a true believer.

    In a sense, this constitutional convention idea is anti-Democratic because it presumes the voters aren’t capable of electing good representatives. In fact, many of the initiatives are at their heart anti-democratic Trojan horses. The prime example is term limits, putting elections on auto-pilot. Why bother learning anything about the candidates when term limits will toss them for you?

    And the two-thirds rule in the Legislature for passing a budget means you have no idea who is really responsible for the budget — the last two or three votes can leverage anything they want. The two-thirds rule is at its heart anti-democratic, and it violates the one-man, one-vote constitutional principle (Baker v. Carr) because it gives one-third of the legislative districts two votes.

    A constitutional convention may be a big idea, but if you were really honest you’d say what reforms you really want, put those on the ballot — or better still, find the candidate who will run on it.

    By the way, spelling counts. It is Don Perata and Willie Brown.

  6. avatar wmartin46 says:

    > Let me point out that Prop.13, 98, et al were
    > brought by Ballot Initiative.

    And your point is? If they were born via the Ballot process, they can die via the Ballot process.

    > In a sense, this constitutional convention
    > idea is anti-Democratic

    Not if the Delegates are elected, and are “bound” to their voting position.

    > Why bother learning anything about the
    > candidates when term limits will toss
    > them for you?

    Term limits are absolutely necessary in order to stop the emergence of an oligarchy of special interests and “elites” that would look no different than the Roman Senate after Caesar.

    > The two-thirds rule is at its heart
    > anti-democratic

    And how is disenfranchising only 1/3rd of the voters more democratic than disenfranchising 50%-1? By the way, what’s your take on a juries having to be unanimous for conviction? That anti-democratic too?

    > what reforms you really want, put those on the

    Isn’t that what those of us against the Ballot have been saying?

    Oh, and what is this “Business Council” getting out of a new State Constitution?

  7. avatar OC Progressive says:

    Thanks.

    I’m gearing up my campaign to be a representative to the Constitutional Convention, and I had forgotten about the red-light cameras.

    And for the commentor who wants intellectuals, give me a break. Why not demand MBA’s?

    I think an elected group with relatively small districts and non-partisan campaigns and no current elected officials allowed could produce a wealth of experience and a wisdom that would be far better than the results we have gotten from our carefully engineered initiatives.

  8. avatar Anonymous says:

    Hmm, how would the delegates be “bound” to their voting position? How does that work?

    And how has term limits prevented the emergence of an oligarchy of special interests? That is precisely what terms limits hath wrought — experienced, well-financed trade associations and inexperienced legislators scrambling for (1) the next elective office and/or (2) a job with a special interest.

    Not sure I get your point on juries. The two-thirds rule is allowing 1/3rd to rule. That is disenfranchisement.

    The point about ballot props is simple — it is the ballot props that have tied up the budget. You can blame “politicians” but you need look no further than the voters who put them there and the stupid ballot initiatives the voters approved. By the way, all of those ballot props mentioned were put on the ballot and won passage through the well-financed efforts of special interests (Prop 13 was the brainchild of the Apartment Owners of LA). You are quite naive if you think “direct democracy” is somehow pure democracy.

  9. avatar DAVID says:

    IN THE FIRST POST – “The Rev said it”!

  10. avatar Packherd says:

    @wmartin46

    George Washington was accused of skimming money off the treasury. Alexander Hamilton was in a duel. Ben Franklin had an affair with a French noblewoman and Thomas Jefferson had an affair with his own slave.

    The men who wrote the U.S. Constitution were all politicians and had slanderous “apostrophized” nicknames like the ones you use for contemporaries.

    If California’s leaders are found wanting, that’s an indictment of the people who elected them.

  11. avatar Anonymous says:

    I do find California’s leaders to be lacking and I place the blame squarely on the people who elected them. I have nothing but contempt for the people that continue to vote without regard for common sense.
    Just a quick question. Can we hold city councils and Mayors for aiding and abeiting of illegal acts by creating all these sanctuary city’s? Drug’s or illegal aliens etc. If the leaders won’t uphold the laws why should I follow anything these people do!

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