Correspondence - #21 - Laserfiche WebLink

Home Browse Search

DOWDALL LAW OFFICES A PROFESSIONAL CORPORATION ATTORNEYS AT LAW City of Santa Ana August 28, 2023 Page 19 section 3 of the California Constitution provides that "a county or a city may adopt a charter by majority vote," and that the Charter shall "supersede... all laws inconsistent therewith." This preference for simple majority rule is evident from the very language of the constitution. Thus, the framers were aware of the significance that a supermajority vote requirement entailed and consciously limited it to special circumstances; the passage of ordinary legislation is not one of those. The Federalist No. 22, at 141 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); accord The Federalist No. 58 (James Madison). The founders generally disfavored supermajority requirements because they shifted the power from a legislative majority to a minority, which was antithetical to their general governing philosophy. The United States Constitution requires supermajority approval for only seven fundamental actions. See, Designing The Tax Supermajority Requirement, 71 Syracuse L. Rev. 959, 963-965. In 1879, California adopted a provision granting the charter -making power, including the requirement that charter provisions should be subject to and controlled by general laws. 2788 The California Supreme Court interpreted this provision to mean that all charter provisions, including those involving municipal affairs, were subordinate to conflicting state general laws. 28 In 1896, an amendment to former article XI, section 6 (currently §5) provided that cities may prepare and adopt charters which allow them to "make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to and controlled by general laws."29 The California constitutional provision now empowers "any county, city, town, or township to make and enforce within its limits such local, police, sanitary, and other regulations as are not in conflict with general laws." Cal. Const. article XI, §11 (now §7). The California Supreme Court has held on several occasions that the state legislature has preempted powers granted by this section to units of local government. See In re Hubbard, 62 Cal. 2d 119 (1964); In re Lane, 58 Cal. 2d 99 (1962). In In re Lane, the court gave a clear interpretation of the doctrine of state preemption. In that case, a woman had been arrested for violating Los Angeles Municipal Code section 41.0787 27 Cal.Const. Art. XI, § 6 (1879). 28 See, People v. Henshaw, 76 Cal. 435, 18 P. 413 (1888); Staube v. Election Commissioners, 61 Cal. 313 (1882). See also Jones, "Municipal Affairs" in the California Constitution, 1 Cal.L.Rev. 132-147. 29 Cal Const. Art. XI, § 6 (amended and adopted as art. XI, § 5 in 1970). -19-