More Collateral Damage from Padilla v. Lever

Well, in one of those "Good News/Bad News" stories, two other political jurisdictions have become caught up in the fall out over Padilla v. Lever. Three initiatives in San Bernardino County and one in Monterey County have been pushed off the ballot by federal district court decisions similar to that issued in Imperial v. Castruita [the suit in which then-Mayor Jay Imperial sued Rosemead to keep the recall election off the ballot because he knew he could not win].

In all three cases, the citizen petitions aimed to reverse a policy adopted by incumbent politicians, and incumbent politicians used the red herring of the Voting Rights Act to disenfranchise the people in their jurisdiction.

So the bad news is that, until Padilla v. Lever is clarified [either by the Ninth Federal Circuit en banc, or by the US Supreme Court, or by an amendment to the Voting Rights Act], multilingual petitions are the law of the land [in the Ninth Circuit Court]. That makes it extremely unlikely that the judge hearing the Imperial lawsuit is going to change his mind.

The good news is that decisions like this will further stir up sentiment for a clarification by the Ninth Circuit regarding what they really intend their decision to mean. Did they really intend to strengthen the hands of incumbents and to disenfranchise citizens groups? Do they really intend to impose an additional barrier to citizens groups seeking to petition their government over grievances? Did they really intend their decision to be retroactive, and apply the reasoning to situations in which the petitions were already turned in before the Padilla v. Lever case was decided?

Just on the basis of fairness, I can not believe they intended retroactive application. So, hopefully, as the Padilla v. Lever case inflicts more and more "collateral damage," the full Ninth Circuit will feel compelled to issue a clarifying opinion.

The harmed party in the Monterey County initiative has filed a request with the Ninth Circuit for an expedited hearing. So, again, the hope is that as the Ninth Circuit becomes aware of more cases of voters being disenfranchised by entrenched interests, they will become more willing to clarify their intent. If they don’t toss out the multilingual requirement, perhaps they will instead order cities to pay for the translations.

Links to newspaper articles concerning the Monterey County and San Bernardino County cases are below.

Conservation initiative removed from ballot

One in Monterey County Removed

Has several links related to all of these cases, including the judges order in the Monterey County case and the motion for expedited hearing filed in that case. Indeed, I became aware of both of these controversies through the website. Rick Hasen is doing a real service to the public by publicizing these issues.

Editorial in the Sacramento Bee

Above is a link to an editorial that appeared in today's [April 4] Sacramento Bee.  Unfortunately, registration is required to view the article, and the registration process is amazingly clunky.  But the story concludes, "At the moment, though, the ruling [Padilla v. Lever] stands, ticking like a political time bomb waiting to explode California's love affair with the initiative process."

[The phrasing reminds me of Justice Jackson's famous dissent in Korematsu v. United States, but I digress].

The story reiterates many of the points raised by Rick Hasen on  Indeed, Weintraub [the op-ed author] acknowedges Hasen and draws heavily from what has been posted on electionlawblog.

We can only hope that editorials such as the one above help to focus public opinion on the true dimensions of the Padilla v. Lever decision.

Another possible Padilla issue here

Short article in the Orange County Register today [April 5] concerning another petition drive.  It's not clear from the article whether this was a formal [legal] petition that would require an initiative or if this was an informal petition asking the city council to reconsider its actions.  It's also not clear if the jurisidiction [San Juan Capistrano] considering the issue falls under sec. 203 of the Voting Rights Act.

But, if it is, good.  The more the merrier.

And another Padilla-related case. . . .

This time, a "sludge" initiative" from Kern County. There's a link to the Bakersfield Californian, but registration is needed to read the story.  I don't know how manages to keep up with all of these reports [well, in this case, I do--he was quoted in the story].  This one was heard in Fresno, in the federal court for the district of eastern California.  The Orange, San Bernardino, and Los Angeles County cases were heard in the district for central California, while the Monterey County cases were heard in the district for northern California.  I think this is also a "good" thing, because this means that judges in several districts within the Ninth Circuit are being presented with these cases, and this may increase the pressure on the Ninth Circuit to address a growing crisis in California direct democracy.

There very well may be other cases like this coming out of other states in the Ninth Circuit, but I haven't come across them in my recent lexis-nexis searches of newspapers in the region.

Monterey County Petition for Expedited Hearing Rejected

Once again, from

More good news/bad news.  Bad news:  The Ninth Ciruit has refused to hear the Monterey County case on an expedited basis.  Good news:  The reason given in the rejection is that the court is considering rehearing the Padilla v. Lever case en banc.  That's not "really" news, but it does mean that several Ninth Circuit judges are aware of the growing collateral damage resulting from Padilla v. Lever, and that may create additional pressure for an en banc rehearing.


More from continues to provide excellent coverage of the Padilla-related litigation.  Late yesterday [4/10], Rick Hasen posted a copy of a letter from the state attorney general's office, urging the Ninth Circuit to grant an en banc rehearing of Padilla v. Lever.  The letter is linked below:

Hasen has himself also submitted an amicus brief, urging the Ninth Circuit to grant an en banc rehearing of the case.  That letter is linked below:

At this point, even if the Ninth Circuit were to reverse itself, it's not clear if we could get our own recall election #1 reinstated soon enough to make a real difference in the direction of our city.  But, obviously, and as a matter of fairness, the laws that existed when we began gathering signatures for recall election #1 should have been the same rules that determined whether or not the petitions were sufficient for requiring the holding of an election.  Changing the rules in midstream make the whole democratic process a travesty.

Addendum--Apparently, an initiative petition circulated in Pasadena regarding their possible bid for an NFL team may also be challenged and forced off the ballot there.

Also, you may have read that SOC has decided to suspend our efforts to qualify a second recall petition. Hopefully, we can get the press release posted hear in the next few days.

Another Update, 4/15/2006

The lastest events, once again, largely due to information posted on

A federal district court judge considering the Loma Linda cases has ruled that referenda do not need to be translated, while initiatives and recalls do.  The difference between a referendum and an initiative referendum [at the city level] is that a referendum seeks to overturn a city ordinance [like our effort to block the city's original approval of the Wal-Mart project in 2004].  An initiative is a citizen-initiated piece of legislation.

Meanwhile, a challenge to an initiative in Kern County has been dropped, so that election will go forward as scheduled.

What this tells you is that the law as applied in the state of California is in flux.  Different rules are being applied in different parts of the state.  And, of course, if no one challenges a recall or initiative, the election goes forward.  So the ridiculous effort by Taylor and Imperial to say that "a federal judge" stopped the election is, of course, baseless.  Judges don't act until someone brings a case to them, and Jay was all too willing to do what ever it took to keep from having to face the voters of Rosemead.  Both Taylor and Imperial know full well that the majority of the voters of Rosemead disagree with them.  That's why they refused to put the Wal-Mart issue on the ballot when they had the chance [twice].  That's why they did all they could to cancel the February recall election.  And that's why neither of them will be seeking reelection next year.

Well, the last of these is not yet a done deal.  We need to be vigilent.  Keep the light shining on their activities, and they, like cochroaches, will lay low.   Turn off the light, and it's back to business as usual in Rosemead.