San Diego’s Recall Election and California Constitution Art. 3, Sec. 3.5

San Diego’s mayor, Bob Filner, has been accused of widespread sexual harassment (and even assault). He is the subject of a recall petition, and today marks the official beginning of the signature-gathering period. But San Diego’s laws governing recall are both somewhat confusingly-written, and remarkably stringent. The city attorney has already issued three legal opinions clarifying various aspects of the recall procedure:

1, declaring unconstitutional a legal requirement that voters can only vote for a replacement candidate if they voted on the recall question.

2, concluding that it is permissible to have multiple recall petitions circulating until a special election is scheduled, despite a confusingly-worded provision that led some to believe that a failed petition immunized the candidate from further recall efforts.

3, declaring unconstitutional a requirement that petition circulators be state residents.

And the Recall Elections Blog describes San Diego’s law as “a disaster, and it many ways it ranks among the worst recall laws in the country, if not the globe.” But there may be yet an additional lurking “disaster” in California law, which I have not yet seen discussed.

Article 3, Section 3.5(a) of the California Constitution says:

An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:
(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;
(b) To declare a statute unconstitutional;

In 2004, the California Supreme Court noted that it was an open question whether this provision applies to local executive branch officials, but if it does, then it creates problems for the recall — it would mean that the city ought to be enforcing the unconstitutional voting requirement, and more importantly, the residency requirements, until a challenge to those provisions can wend its way through the court system. And even if the applicability of Section 3.5 is simply an open question, it ensures yet further legal confusion for the recall.

(Professor Vikram Amar also has an argument that Section 3.5 should not apply if there’s a very closely analogous appellate court decision, even if no court has actually made a determination about the specific law at issue. Maybe so, but again, the legal uncertainty is itself a real potential problem.)

In one of the memoranda, the San Diego City Attorney recommended that the unconstitutional recall provisions be repealed. Given the possible applicability of Section 3.5, that seems like a very good idea. Or maybe I am missing something.