By Anthony Caso

A trial court judge recently decided that the Legislature can nullify Californians’ right of initiative.

This astounding ruling comes in a case brought by labor unions to challenge Proposition 22 – the initiative that protected Uber and Lyft drivers’ status as independent contractors. The law was approved by nearly 10 million voters, almost 60% of those who voted in the election.

If allowed to stand, the implications of this decision will be felt far beyond the gig economy.

More than a century ago, Californians amended their constitution to allow citizens to propose laws to be adopted by voters.  Once an initiative statute is adopted, the Legislature has no power to alter the voter-adopted law unless that law itself gives the Legislature such power.  These changes to the constitution were based on the people’s judgment that they could not always trust the Legislature to pass laws in the public’s best interests.

With this change in the California Constitution, the power to legislate became a shared power.  No longer was it a power held exclusively by the Legislature.

To emphasize the people’s power to legislate, the constitution provides that the Legislature cannot amend an initiative statute unless the law passed by the people allows the Legislature to do so.  Otherwise, the Legislature must receive permission from voters to amend an initiative statute.  The California Supreme Court has noted that the judiciary has a special obligation to “jealously guard” the people’s right of initiative.  That right is one of the most “precious” in the state’s democratic system.

None of that made a difference to the trial judge considering the attack on Proposition 22.  The judge ruled that only the Legislature can determine who is an “employee” because the Legislature had “plenary power” over the subject of workers compensation.

The logic goes like this: Because Californians falling within the definition of “employee” are included in the workers compensation system, only the Legislature has the right to decide who is an employee.  Thus, initiatives that conflict with the Legislature’s definition of who is an employee interfere with the Legislature’s “plenary power” over the system of workers compensation.

The problem with this logic, and this decision, is that the trial judge essentially decided that the California Constitution violates the California Constitution.  That is, the provision of the constitution that prohibits legislative amendment of initiative statutes without voter approval conflicts with the provision of the constitution giving the Legislature “plenary power” over the system of workers compensation.

Faced with this conflict, the trial judge chose the power of the Legislature over the power of the people, even though the courts have long described the people’s initiative power as the same in every respect to the legislature’s ability to enact laws.

The gig companies intend to appeal this ruling, and rightly so. But this case is no longer just a battle between the so-called “gig economy” and labor unions.  It is now a battle about the future of the initiative in California.  Will the initiative continue to be an important tool for the people to ensure that the Legislature represents them rather than special interests?  Or will this cherished right, once jealously guarded by the judiciary, now become a relic of a bygone era?

All Californians who cherish the right to direct democracy should hope the appeals courts choose the former.

Anthony T. Caso is a clinical professor of law at Chapman University’s Fowler School of Law and a senior legal fellow at the Claremont Institute.

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