Second ballot initiative is tossed by court
Panel says energy 're-regulation' measure is invalid.
By Clea Benson -- Bee Capitol Bureau July 23, 2005

For the second time in two days, a state court Friday threw out an initiative, leaving only six measures on the dwindling Nov. 8 special-election ballot.

In a setback for consumer groups seeking new controls on the energy industry, the 3rd District Court of Appeal invalidated Proposition 80, billed by proponents as a "re-regulation" of power companies that would help avoid rolling blackouts.

The move came the day after a Sacramento Superior Court judge tossed out Proposition 77, a plan for changing how political districts are drawn. That measure was a key part of Gov. Arnold Schwarzenegger's government-overhaul agenda.

Both decisions are likely to be appealed.

Friday, the appeals court unanimously sided with the Independent Energy Producers Association, a trade group that sued to block Proposition 80.

In their ruling, a panel of three judges said Proposition 80 was "unquestionably invalid on its face" so it wouldn't be fair to ask voters to consider it.

The judges said expanding controls on energy producers requires an amendment to the California Constitution. But Proposition 80 includes only a change to state law, not a constitutional amendment.

Attorneys for the initiative's authors, The Utility Reform Network, a San Francisco group, said they would ask the California Supreme Court to reverse the decision.

"We respectfully but strongly disagree" with the appeals court's ruling, said Robin Johansen, the lawyer representing TURN.

TURN collected signatures to put the measure on the ballot nearly five years after Californians suffered a series of rolling power blackouts.

The group said the initiative would prevent blackouts and protect consumers by helping utilities line up the financing to build power plants.

It would block businesses' ability to buy their power directly from independent producers instead of from utilities. And it would allow utility companies to decide whether to build new plants or buy their power from independent producers.

TURN said those changes would make it easier for utilities to gauge energy demands.

"What this initiative would have done is stop the market manipulation that led to those blackouts in the first place," said Mindy Spatt, a spokeswoman for TURN. "It's become very clear that the reason we had rolling blackouts had nothing to do with need and everything to do with greed."

Spatt said the group started circulating petitions to qualify the measure for the ballot after the Republican governor last year vetoed Assembly Bill 2006, a measure written by Assembly Speaker Fabian Núñez that would have done the same thing.

Núñez, D-Los Angeles, also criticized Friday's ruling.

"This decision is a wake-up call to the governor to work with the Legislature to craft a long-term energy solution for our state," he said in a statement.

But Jan Smutny-Jones, executive director of the Independent Energy Producers Association, hailed the court decision as a good one for consumers.

"Our belief was Proposition 80 was poorly drafted, and its flaws would have had considerable negative implications on California's electricity consumers," he said. "We believe this proposition was drafted in a way that would have had negative implications for being able to build new plants in California."

If proponents of Proposition 77 and Proposition 80 do not prevail in appeals to higher courts, six initiatives will remain on the Nov. 8 ballot.

Two rival measures, one sponsored by drug companies and another supported by consumer groups, would offer drug-discount plans for uninsured Californians. One proposition would require minors seeking abortions to notify their parents. Another would require public employees to give their consent before their union dues can be used for political purposes.

And two measures backed by Schwarzenegger remain: One would extend the amount of time teachers must work before getting tenure, and the other would restrain state spending and give the governor more budget-cutting power.

Secretary of State Bruce McPherson said Friday that he would remove Propositions 77 and 80 from the ballot and would begin displaying materials for the special-election ballot pamphlet for 20 days starting July 26, as state law requires.

SPECIAL ELECTION
Six measures are scheduled for the Nov. 8 special election

PROPOSITION 73
Abortion - Anti-abortion groups are spearheading an effort to require that parents to be notified before a minor receives an abortion.

PROPOSITION 74
Teacher tenure - A proposal by Gov. Arnold Schwarzenegger would make it more difficult for teachers to achieve tenure protections.

PROPOSITION 75
Union dues - Schwarzenegger allies are backing a plan to restrict unions from using members' dues for political purposes.

PROPOSITION 76
Budget - The centerpiece of the governor's plan, the measure would change minimum school funding guarantees and let the governor unilaterally cut programs.

PROPOSITION 78 Hate 78
Drugs - Drug companies support a measure to make voluntary their participation in a state drug discount plan for the poor.

PROPOSITION 79 79 is FINE
Drugs - Health advocates are backing a measure that they say could provide cheaper prescription medicine to 10 million uninsured, elderly and low-income Californians.

Two measures have been tossed off the ballot, but appeals are likely.

PROPOSITION 77
Redistricting - The Schwarzenegger-backed measure would shift the task of redrawing political districts from the Legislature to a panel of retired judges.

PROPOSITION 80
Energy - A consumer group is backing a plan to partially re-regulate electricity.