February 1, 2005 > Municipal Primer On Ballot Initiatives

At the Jan. 18 meeting of the Fremont City Council, City Attorney Harvey Levine explained how courts view ballot initiatives and city responsibilities when affected. Although the initiative in question at this meeting was Measure T (Hillside Initiative), Levine explained that his comments could be extrapolated to "interpretive rules that the courts will ultimately use whenever there is a challenge to legislation in general and initiatives are generally treated like state legislation."

Courts have developed a series of rules to deal with ballot initiatives. Since initiatives do not originate in the legislative process, there is no "trail of legislative history." This classic interpretive tool, using written records of debate and amendments to legislation, is not available. In its absence, courts (and a city) must look at the "plain meaning of the language." Although this may sound simple, it can be difficult to avoid trying to force meanings of words to reach a desired result. Courts will look at what words mean in normal usage.

"Surplusage" (legalese for dropping words and altering content) is avoided when interpreting an initiative. According to Levine, a sentence might say that something is "very special." In this case, there is an assumption that the authors of the initiative included the word "very" for a specific reason and to remove it, using an interpretation of "special" without the addition of "very," might significantly alter meaning and intent. The courts will say that "it is the language of the initiative that the voters saw and have a right to expect."

In cases of uncertainty caused by ambiguity or conflict of an initiative, courts look to the purpose of the initiative. The first line of inquiry is to ask, "What are the purposes of the initiative?" Beyond that, courts will look for extrinsic evidence - evidence that is not part of the initiative. This usually means ballot materials including pros, cons and attorney or legislative counsel analysis.

Levine explained that "It is appropriate use of the initiative process to adopt general plan amendments." Initiatives can also be used to adopt zoning ordinances. In the case of Measure T, the city will adopt zoning ordinances that are consistent with the general plan. "Finally," said Levine, "the duty of the city is to implement the initiative based upon what the citizens intended and, if there is litigation, to defend the initiative just as if it was written by ourselves."

Levine ended his comments by advising the city council, "We are responsible for defending this; we are responsible for going to court if there is a challenge; we are responsible for implementing it."