By Steven G. Churchwell
Proposition 22 passed 59% to 41% in November 2020, and classified most app-based drivers as independent contractors. A trial court in Alameda County recently invalidated the initiative measure, citing three grounds. (Castellanos v. State of California, No. RG21088725.) This commentary will discuss why the court’s reasoning supporting one of those grounds—a violation of the “single-subject” rule—appears to run counter to precedent in that area.
“An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” (Cal. Const., art. II, § 8(d).) The rule is designed to prevent the similar concepts of “logrolling” and “riders.” “Logrolling” is the combining of two proposed statutes, neither of which would have enough votes to pass individually. A “rider” is a minor provision—that would not pass on its own—attached to a popular bill. The penalty for violating the single-subject rule is extremely severe: the entire ballot measure is rendered void.
For that reason, reviewing courts have rarely exercised this “nuclear option.” “Over the past half-century, the great majority of appellate decisions that have addressed single-subject challenges to initiative measures have found that the challenged measures satisfied the single-subject rule.” (Senate of State of California v. Jones (1999) 21 Cal.4th 1142, 1158.) In fact, of the 46 published appellate decisions to address single-subject challenges to California initiatives, only nine courts concluded there was a violation of the rule.
“An initiative measure does not violate the single-subject requirement if, despite its varied collateral effects, all of its parts are ‘reasonably germane’ to each other and to the general purpose or object of the initiative.” (Brosnahan v. Brown (1982) 32 Cal.3d 236, 245.) The courts “have upheld initiative measures which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose.” (Senate of State of California v. Jones, supra, 21 Cal.4th at p. 1157 .)
Even so, the courts have cautioned that “proponents of initiative measures do not have blank checks to draft measures containing unduly diverse or extensive provisions bearing no reasonable relationship to each other or to the general object which is sought to be promoted.” (Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1099.)
A rare example of an initiative violating the requirement was the “no-fault” insurance initiative placed on the ballot in 2008 by several property/casualty insurance companies. Buried in the middle of the 120-page initiative, which rewrote California law governing auto accidents, was a provision titled “Regulation of campaign contributions.” The provision guaranteed the right of any entity related to the insurance industry to make campaign contributions, and ensured that such contributions would not disqualify an elected state official from voting on insurance matters.
The court of appeal removed the measure from the ballot, holding that the offending section “is neither reasonably germane nor functionally related to the stated general object of the initiative or to its other provisions.” (California Trial Lawyers Association v. Eu (1988) 200 Cal.App.3d 351, 362.)
Far more commonly, even complex and lengthy initiatives survive a single-subject challenge. One example is FPPC v. Superior Court, (1979) 25 Cal.3d 33. There, the Supreme Court rejected a single-subject challenge to Proposition 9, a measure that included regulation of: campaign finance disclosure and limits; lobbying; conflicts of interest; gifts, honoraria and travel; voter guide arguments; and the ballot position of candidates for elective office. The court stated: “We adhere to the reasonably germane test and, in doing so, find that the measure before us complies with the one subject requirement … In keeping with the policy favoring the initiative, the voters may not be limited to brief general statements but may deal comprehensively and in detail with an area of law.” (Id. at p. 41.)
So what, in the case of Proposition 22, was the basis for the trial court concluding there was a single-subject violation? Article 9 of the measure, titled “Amendments,” includes this provision:
“(4) Any statute that authorizes any entity or organization to represent the interests of app-based drivers in connection with drivers’ contractual relationships with network companies, or drivers’ compensation, benefits, or working conditions, constitutes an amendment of this chapter and must be enacted in compliance with the procedures governing amendments consistent with the purposes of this chapter as set forth in subdivision (a) and subdivision (b) of this section.” (Section 7465(c)(4).)
The trial court concluded that this “prohibition on legislation authorizing collective bargaining by app-based drivers” was not “reasonably germane to a common theme, purpose, or subject” of Prop. 22.
The trial court appears to have made two errors in its analysis. First, it focused on whether the California Legislature has the legal authority to enact a law allowing independent contractors to collectively bargain.
That would be an interesting topic for a law review article, perhaps. But the narrow issue before the court was whether the subject of collective bargaining is reasonably germane to an initiative that is dealing comprehensively and in detail with the area of labor law applicable to app-based drivers. That the answer is “yes” seems certain, even allowing for some amount of subjectivity in one’s definition of the term “germane.”
Second, the trial court misinterpreted Section 7465(c)(4) as a prohibition on collective bargaining by app-based drivers. That is incorrect. Section 7465(c)(4) merely states that if the Legislature wishes to enact collective bargaining for app-based drivers, it must follow the same procedure specified for amending the rest of Prop. 22: a 7/8 vote in each house, final version of the bill in print 12 days before passage, and furthers the purposes of the measure.
This interesting case will certainly be worth watching as it moves through the courts.
Steve G. Churchwell is of counsel to the law firm Buchalter, APC, and former general counsel for the California Fair Political Practices Commission.