Friday, December 26, 2014

Bob Dunning: Will the will of the people survive this challenge?


From page A2 | March 31, 2013 |

Now that it seems certain the city of Davis will have to defend its complicated, first-on-the-planet water rate structure in a court of law, people who should know better are coming out of the woodwork to accuse those filing the lawsuit of thwarting the “will of the people.”

How quickly they forget how our remarkable system of checks and balances works. We pass laws and ordinances either through our elected representatives or through a direct vote of the people. In some cases, a signature from the executive branch is necessary, in some cases, it’s not. When it comes to ordinances passed by the Davis City Council, there is no executive to sign it.

The courts provide a last resort for those aggrieved souls who feel their constitutional rights have been trampled by the “will of the people” as expressed by legislative action or ballot measures.

Yes, the courts can also be a vehicle for mischief-makers who like to throw a monkey wrench at any laws that come down the pike. That’s clearly not the case here, despite the howls of ridicule and scorn from those who despise anyone who dares to question their “innovative” and confusing water rate structure.

“But we just voted on this,” one disgruntled curmudgeon remarked to me as we both fumbled through a large bin of navel oranges at Nugget.

Well, actually, we didn’t just vote on this. Truth be told, we’ve never voted on this. The rate structure and the rates themselves were both conveniently and intentionally left off the ballot when the Davis City Council decided to put this to a mail-only vote of the people that concluded on March 5.

That vote, by 54 to 46 percent, merely gave the council permission to proceed with the $113 million Surface Water Project. Rates were not at issue.

All last week, the eyes of the nation were fixed on the United States Supreme Court, where California’s carefully watched Proposition 8 was up for the court’s consideration. And while this case began with a 52 to 48 percent vote of the people in 2008, not a single one of the nine Supreme Court justices suggested that judicial review of that vote and the lower court decision that followed was inappropriate. Neither did the attorneys on either side of this case.

Much of what we now take for granted in this country are judicial decisions that rendered the so-called “will of the people” unconstitutional.

On Nov. 8, 1922, the people of the great state of Oregon, spurred on largely by the Ku Klux Klan, voted to eliminate all Catholic schools in the state by requiring all children ages 8 to 16 to attend public schools. The measure passed, ironically, with just over 52 percent of the vote.

Less than three years later, in Pierce v. the Society of Sisters of the Holy Names of Jesus and Mary, the U.S. Supreme Court unanimously overturned Oregon’s new law.

Undoubtedly the most famous case denying the clear “will of the people” was Brown v. Board of Education, the school segregation case that came to the Supreme Court from the states of Kansas, South Carolina, Virginia and Delaware.

Writing for the unanimous court in striking down permissive or mandatory segregation in 21 states, Chief Justice Earl Warren said “In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race.”

Clearly, those laws represented the will of the people in the states directly affected by the ruling, but again, no one suggested this was not a proper case for judicial review.

We can look back now at the Oregon case and at Brown v. Board of Education and at several other landmark decisions and shake our heads at the “backward” thinking of the day, but imagine if there had been no court system to overturn the expressed will of the people when that will so clearly violated the U.S. Constitution.

And so it is with our very own lawsuit involving the water rate structure recently imposed by the city of Davis. It, too, alleges a constitutional violation, in this case the California constitution as amended by Proposition 218 in 1996.

I have no idea how the court will rule. It may rule for the plaintiffs or it may rule for the city. Or it may order both parties to sit down at a great big table with their favorite beverages and hammer out a fair and equitable rate structure agreeable to everyone.

Of one thing I am certain. If this 23-page lawsuit with its 12 causes of action is frivolous or without merit, one of Yolo County’s able Superior Court judges will kick it out into Dead Cat Alley faster than you can say “consumption based fixed rate.”

Trust me on this.

— Reach Bob Dunning at





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