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.