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Patent ownership Archives - Patent my French!
It is always about the money, isn’t it?
No, not life. But patent litigation? Maybe so.
Today’s lawsuit pits an optician businessman – and inventor – against the major French-based ophthalmic optics group, Essilor.
This inventor filed a French patent application concerning a nose pad invention in April 2013. On January 1, 2014, he assigned his invention to Essilor International. I should add that he was independent from Essilor, so we are not talking about an employee’s invention here.
The litigation between them later arose because the inventor was dissatisfied with the money he made from the assignment.
We thus need to look at the consideration provided in the assignment for the transfer of rights.
Based on the excerpts mentioned in the judgment, a lump sum of 400,000 euros was provided. In addition, a variable price was set, over a period of time of 19 years, according to a sophisticated formula taking into account the number of countries in which patent applications would be filed and patents would be granted, as well as the number of devices incorporating the invention which would be sold.
As far as I understand, only the lump sum was paid. In 2016, the assignor claimed additional money corresponding to the variable part of the deal. Essilor replied that there were difficulties in working the invention, and that prosecution of the patent applications on the invention was still ongoing.
In January 2017, settlement discussions were initiated, in which Essilor offered 85,700 euros as a complementary payment – to no avail. In May 2018, the inventor filed a complaint with the Paris Tribunal de grande instance (TGI), alleged a breach of contract and claimed damages.
The inventor provided several estimates for these damages. His first estimate amounted to more than 3 million euros for the period of 2015-2017, and then more than 2.7 million euros per year from 2018 to 2034. His second, auxiliary estimate was 4 million euros in total. The third, less preferred estimate was 600,000 euros in total.
Essilor fought back and requested that the action be dismissed. They also provided their own calculation for the minimal amounts to be due, as an auxiliary argument, namely 16,666 euros from year 2 to year 10 and 3,333 euros from year 11 to year 20. This corresponds to the amounts due in consideration of the current state of the patent portfolio, and does not take into account any sale.
After the nose pads… muzzle pads.
Turning now to the judges’ decision, the first interesting point relates to the issue of whether the negotiations between the parties were loyal or not.
The inventor claimed that he was not properly assisted during the negotiations, which were uneven and led him to agree to a clause on the variable part of the consideration which was unfavorable to him.
It is thus the content of an oral exchange in a time frame very close to the execution of the agreement which led to the adoption of the proportion of granted and non-refused patents as the adjusting parameter for the “provisional amount” or minimal amount, in the drafting of the agreement. But it cannot be deduced that this criterion was never previously discussed […]. Contrary to the defendant, [the inventor] provides little information on the exchanges prior to the execution of the agreement, which, based on their contents, do not reflect the alleged weakness of the plaintiff but at best his desire to rapidly achieve the execution of the assignment agreement.
[…] Even if it is surprising that the provision relating to the variable part of the price, which is so important […], was significantly modified without any written proposal before the final version, this circumstance is not sufficient to qualify the discussions leading to the execution of the assignment as dishonest. The correspondence filed as evidence […] actually proves the very active part taken by the claimant in the different steps of the negotiation, the stakes of which he always clearly understood.
Next, the inventor blamed Essilor for filing a PCT application based on his first French application.
Indeed, using the PCT route instead of direct national filings results in a delay in the grant proceedings. I would add that this is actually one of the main reasons why applicants file via the PCT in the first place. But in this case, any delay in the grant proceedings leads to less money payable to the inventor – in view of the definition of the variable part of the price.
The court noted that the agreement does not explicitly mention that the patent filings abroad should be done through the PCT route. Nor does it exclude the PCT route. Therefore, the court had to determine the common will of the parties. The court first noted that, according to another clause of the agreement, the assignor explicitly represented that he had not filed any direct or PCT application. The fact that a distinction between PCT and non-PCT was made in this clause (unrelated to future filings), was interpreted by the judges as a pointer to the fact that a future PCT filing should have been explicitly mentioned, in order for it to be allowed.
In view of the importance of the patent grant timeline for the general object of the contract, clause 5.2 must be interpreted, despite its lack of precision in this respect, as not allowing Essilor to file an international application. This choice was thus made in violation of the provisions of the [agreement].
So that’s a first rebuke for the assignee.
Then came a second one, relating to the absence of exploitation of the invention.
The court first held that, when the assignment price comprises a royalty which depends on the exploitation of the invention by the assignee, this implies a duty for the assignee to exploit the invention; otherwise the clause would be wholly one-sided.
This obligation concerns the means implemented by the assignee, and not the outcome. In other words the assignee does not have to succeed in implementing the invention, but they have to try. And the assignee has the burden of showing that they have used all appropriate means for exploiting the invention.
In this respect, Essilor referred to two messages evidencing some difficulties in the development of the nose pads of the invention.
These two sole exhibits relating to a time span of almost two years cannot possibly show that there is a technical impossibility of exploiting the invention. They merely reveal that each version at stake turned out to raise different development issues, and that in 2016 only the “tube” version was deemed as being able to be made and marketed.
So, that was held as another fault.
Finally, what is generally the stodgiest part of a judgment (this case being no exception): the assessment of damages.
The court started by holding that the damages should compensate for the loss of opportunity for the inventor to get royalties. Then, they took note of the objections raised by the various patent offices and the amendments made in response which, they implied, lowered the prospects of exploitation of the invention.
the fact that the inventor subsequently filed another patent application on a nose pad.
All in all, the court discarded both the claimant’s and the defendant’s estimates, and came up with a global figure of 300,000 euros of damages compensating for the inventor’s loss of opportunity.
There is a very French expression for this approach: “à la louche“, literally “with a ladle“. It means a very rough estimate, close to guesswork. And, à la louche it is in this case, I think.
On the other hand, we cannot really blame the court for this. First, the parties came up with hugely discrepant figures, as is not unusual. Second, loss of opportunity is all about what could have been in an alternate universe, which leaves a lot of room for imagination. Third, the court was not assisted by an expert and had only the partial evidence provided by the parties at hand.
I can’t help but wondering: the parties will continue to be bound by the agreement for many years to come. So, would a settlement not be still the best option for all of those involved?
CASE REFERENCE: Tribunal de grande instance de Paris, 3ème chambre 3ème section, May 25, 2018, Jean-Luc B. v. SA Essilor International, RG No. 17/06753.
When international private law meets patent law, things never fail to get interestingly complex.
Today’s case pits a German plaintiff, TerraNova Energy GmbH & Co. against a French defendant, Suez International SAS, and the litigation involves a number of patents and patent applications worldwide.
The background of the case is the following (according to the summary provided by the judge in the order to be discussed).
TerraNova developed a technology for recycling organic waste recovered from sewage sludge. Suez International, originally Degrémont, is now part of the Suez group, a major actor in the water and waste treatment industry.
Between April 2011 and October 2012, TerraNova presented its so-called “Ultra” technology to Suez in a demo plant in Germany. A non-disclosure agreement (NDA) was signed in November 2012. Both companies continued to cooperate, which led to the execution of a second, partnership agreement in April 2013. According to this partnership agreement, Suez had an exclusive right to the Ultra technology in France, and had a preemption right on the technology in other countries.
In 2013 and 2014, the Ultra technology was implemented in a sewage treatment plant in Compiègne, France and then in another facility in Maribor, Slovenia. In May 2014, the parties began negotiating a license agreement. November 2014 is the point in time when things started going south, as Suez informed TerraNova that they wanted to improve the Ultra technology, and to work on this new process in China. Then, they announced that they no longer intended to get a license, having developed their own improved process.
In January 2015, Suez offered to pay royalties for the ongoing Chinese project and for a potential second one, and requested exclusive rights in China. TerraNova refused. In October 2015, Suez opened a renegotiation of the 2013 partnership agreement and mentioned the development of its own, distinct technology. TerraNova then realized that Suez had filed three PCT applications, based on three French priority applications filed respectively in May 2013, July 2013 and November 2014. A number of granted patents and pending applications were later filed from these PCT applications, in Europe, China, the U.S., Canada, Australia and Brazil.
TerraNova was of the opinion that the patent applications disclosed confidential information communicated to Suez under the 2012 NDA. They filed a complaint with the Paris Tribunal de grande instance (TGI) in October 2016, claiming damages as well as the transfer of the various patents / applications.
Patent law meets international law.
As a legal defense, Suez argued that the Paris TGI lacked jurisdiction over this dispute. As an auxiliary argument, they said that the court lacked jurisdiction at least regarding the requested transfer of patent rights deriving from Suez’ PCT applications.
This legal defense was debated in front of the case management judge, which gave rise to the order discussed today. The merits of the case are not addressed in this order.
Let’s first deal with Suez’ general argument of lack of jurisdiction. The difficulty here is that the parties were bound by two successive agreements: the 2012 NDA and the 2013 partnership agreement.
Now, the NDA contained a jurisdiction clause, per which any dispute in connection with the agreement should be tried by the Paris courts. But the partnership agreement contained an arbitration clause, per which any dispute in connection with the agreement should be brought to the Swiss Chambers’ Arbitration Institution.
Suez claimed that, according to the competence-competence principle, only the arbitral tribunal had jurisdiction to decide on which forum had jurisdiction.
The court referred to article 1448 of the Code de procédure civile. According to this provision, if a lawsuit subjected to an arbitration agreement is filed in front of a national court, the court must decline jurisdiction unless (1) the case has not yet been brought to an arbitral tribunal, and (2) the arbitration agreement is manifestly null or inapplicable. These conditions (1) and (2) are cumulative.
In this case, condition (1) was fulfilled, as the case had not been brought to an arbitral tribunal. As to to condition (2), the court came to the conclusion that it was also fulfilled. The arbitration clause of the partnership agreement was manifestly inapplicable to the dispute, said the court. If there was the slightest doubt as to whether the arbitration clause was applicable, my understanding is that the judge had no other choice but to decline jurisdiction. Yet, in this situation, there was apparently no doubt at all.
It was clear that the parties to the NDA intended to subject this agreement to the jurisdiction of the Paris court.
The later partnership agreement did not state (be it implicitly or explicitly) that this jurisdiction clause in the NDA was no longer applicable.
The NDA contained a mention that the agreement would expire 3 years after the execution date, except some provisions which would still apply for 5 years after the end of the agreement. The jurisdiction clause was not cited among the surviving provisions. But the judge held that a jurisdiction clause was autonomous with respect to the rest of the agreement and necessarily continued to apply to disputes arising from the agreement.
Finally, the complaint did relate to an alleged breach of the non-disclosure provisions of the NDA, and not to an alleged breach of the partnership agreement.
Therefore, the overarching competence-competence principle in this particular instance did not apply, and the judge refused to decline jurisdiction.
This leads us to the second (auxiliary) part of Suez’ legal defense, i.e. that the judge should decline jurisdiction at least over the requested transfer of patent rights stemming from Suez’ PCT applications.
Indeed, the applications were filed after the execution of the partnership agreement, so that only this later agreement was applicable to TerraNova’s claim for ownership.
It is not perfectly clear to me when reading the order whether Suez also argued that the TGI had no jurisdiction over disputes regarding the ownership of foreign patent rights (as opposed to French patent rights) as a matter of principle. Anyway, in the past, French courts did not hesitate to rule on ownership claims regarding foreign patent rights, and the trend was not reversed in this case.
It is interesting to note, though, that TerraNova did not request that the foreign patent rights should be transferred to them by the court, but rather that the court should order Suez to perform the transfer of these patent rights to their benefit. The formulation of this claim probably makes it easier to avoid any potential argument that the French courts would encroach upon the prerogatives of foreign states.
As to the merits of Suez’ argument, the judge held that TerraNova’s transfer claim was analyzed as a remedy pertaining to the alleged breach of the NDA, so that the TGI did have jurisdiction also over this aspect of the case.
To summarize, Suez’ legal defense was rejected, and the proceedings will continue on the merits.
CASE REFERENCE: Tribunal de grande instance de Paris, 3ème chambre 1ère section, ordonnance du juge de la mise en état, April 5, 2018, TerraNova Energy GmbH & Co v. Suez International SAS, RG No.16/16334.
Posted on June 11, 2018 June 10, 2018 Categories Claim for ownership, French case law, JurisdictionLeave a comment on Competence? Competence!
Another week, another issue of international jurisdiction. Last week’s post was about a case of declaration of non-infringement. This week’s post is about a case of ownership claim. But I think this time the decision issued by a French judge has a greater potential for arousing controversy.
In short: the judge decided that the Protocol on Recognition should be discarded in the determination of jurisdiction in the case at hand. The “Protocol on Recognition” is short for “Protocol on Jurisdiction and the Recognition of Decisions in respect of the Right to the Grant of a European Patent“. The object of the Protocol is to define which courts of the EPC contracting states shall have jurisdiction to decide claims, against the applicant, to the right to the grant of a European patent.
Pursuant to Article 164(1) EPC, the Protocol is considered as an “integral part” of the EPC, and therefore is part of an international agreement. So, I think the decision by the judge not to apply the Protocol is a pretty big deal.
Let’s turn to the specifics of the case. This is a dispute between a British company, NCAM Technologies Ltd. and a French company, Solidanim, both active in the field of motion picture technology. Both hold IP on similar technologies, respectively called NCAM Live and SolidTrack.
Solidanim filed a French patent application in December 2011, followed by a European patent application in December 2012, claiming the priority of the French application. The French patent was granted, and the European application is still pending.
NCAM Technologies Ltd. filed a British patent application in May 2012, followed by another British patent application and a PCT application in May 2013, claiming the priority of the initial 2012 filing. The PCT application entered regional phase at the EPO.
Filing date 1918 – the early days of cartoon technology.
Apparently, Solidanim told clients that NCAM had stolen its SolidTrack technology. NCAM did not like that and sued Solidanim in front of the Paris Tribunal de grande instance (TGI) in October 2015. NCAM requested that Solidanim’s French patent be held invalid, and that Solidanim be declared guilty of unfair competition due to disparagement.
In March 2016, Solidanim counterclaimed for infringement of its French patent and of its European patent application and for unfair competition.
Even more importantly for the present post, Solidanim claimed ownership of NCAM’s British patent, PCT application and resulting European application.
that the court should acknowledge its lack of jurisdiction with respect to Solidanim’s ownership claim.
This leads us to the order issued by the case management judge in November 2016. The first request was quite easily granted. Indeed, infringement proceedings based on a pending European patent application are stayed as of right (article L. 615-4 Code de la propriété intellectuelle). Furthermore, infringement proceedings based on a French patent are also stayed as of right if there is a parallel European patent application which is still pending (article L. 614-15 Code de la propriété intellectuelle). This is because the French patent is bound to totally or partially disappear after the grant of the European patent (more specifically, at the end of the opposition time limit or at the end of the opposition proceedings, if any).
Turning to the second request, there was no mandatory rule for the judge to follow. He had discretion whether to proceed further or to stay. He decided to stay, “for a good administration of justice“, according to the ritual phrase, due to the parallel European patent application still being examined at the EPO, and since the fate of the French patent is closely tied to that of the European application.
Articles 4 and 5 are irrelevant here, as they relate to employees’ inventions and cases in which there is a preexisting agreement with a jurisdiction clause in place between the parties.
So, this is quite straightforward. According to article 2 of the Protocol, the British courts should have exclusive jurisdiction to rule on Solidanim’s claim for ownership of NCAM’s European application, since NCAM has its principal place of business in the UK.
A person domiciled in a Member State may also be sued: […] (3) on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending.
Claims were already pending in the Paris TGI due to NCAM’s original complaint. Solidanim’s case was that their ownership counterclaim arose from the same facts on which the original nullity and unfair competition claims were based. As a result, the French court also had jurisdiction under the Brussels I regulation.
First, as a matter of fact, did Solidanim’s ownership counterclaim indeed arise from the same facts on which the original claims were based?
Second, as a matter of law, which provisions should prevail: those of the Protocol on Recognition or those of the Brussels I regulation?
[…] The latter claims are closely related to the circumstances of fact and relations between the parties, which need to be assessed so as to determine whether the filings made by NCAM did or did not violate Solidanim’s rights on the FR’057 patent, the validity of which is challenged in front of the Parisian court.
I am not sure I fully understand why a nullity claim concerning one patent is necessarily closely related to an ownership claim concerning other, later applications by another party – apart from the general background of the case. On the other hand, it seems quite clear that NCAM’s unfair competition / disparagement original claim was closely related to Solidanim’s ownership counterclaim. In both cases, the issue, to put it bluntly, was whether or not NCAM had “stolen” Solidanim’s technology.
But the legal issue is certainly the most interesting one. Both the Protocol and the regulation contain some general provisions on how they should be articulated with other legal instruments.
So the Protocol proclaims itself to be superior to any other agreement. But the regulation is not an agreement. It is a piece of EU law.
On the other hand, the regulation contains an entire chapter (articles 67 to 73) on its relationship with other instruments. This chapter contains general guidance and some specific provisions, but no specific provisions regarding the Protocol on Recognition.
So the judge turned to a CJEU decision relevant for this issue, namely C-533/08 (TNT Express Nederland BV v. AXA Versicherung AG) of May 4, 2010. This decision deals with the articulation between regulation (EC) No. 44/2001, which was the previous version of the Brussels I regulation, and an international agreement, namely the Convention on the Contract for the International Carriage of Goods by Road, signed in Geneva in 1956.
in a case such as the main proceedings, the rules governing jurisdiction, recognition and enforcement that are laid down by a convention on a particular matter […] apply provided that they are highly predictable, facilitate the sound administration of justice and enable the risk of concurrent proceedings to be minimised and that they ensure, under conditions at least as favourable as those provided for by the regulation, the free movement of judgments in civil and commercial matters and mutual trust in the administration of justice in the European Union (favor executionis).
Article 71 of regulation 1215/2012 is similar to article 71 of regulation 44/2001. Therefore, the judge applied the criteria set by the supreme court of the EU, based on the premise that the same criteria should apply whatever the international agreement at stake is.
The judge acknowledged that the Protocol on Recognition affords a high degree of predictability.
However, turning to the objectives of sound administration of justice and of minimizing the risk of concurrent proceedings, the judge noted that the claims and counterclaims at stake were so closely related that the sound administration of justice and the minimization of the risk of concurrent proceedings were better served if all claims and counterclaims were handled by the same court.
On the one hand, the [NCAM] patents relate to a system similar to the one claimed by Solidanim in its FR’057 patent, in that they deal with real-time merging or composing of computer-generated 3D objects and a video stream from a video camera. And on the other hand, the ownership claims rely on the same factual circumstances relating to the relationships between the parties and their employees, which lead them both to claim a primacy on the inventions provided in these different patents or applications and to consider that the statements made by the parties against each other constitute acts of unfair competition.
Consequently, said the judge, the Protocol for Recognition did not pass the test set in C-533/08 in the present circumstances, and it should thus simply be ignored, to the benefit of the Brussels I regulation.
Let’s see how this case further develops. It could even be a matter for further reference to the CJEU down the road, could it not?
As a side note, in a few years’ time, I assume that the Brussels I regulation will no longer apply to the UK, so that a similar situation will have to be handled completely differently.
CASE REFERENCE: Tribunal de grande instance, 3ème chambre 2ème section, ordonnance du juge de la mise en état, November 24, 2016, NCAM Technologies Ltd. v. Solidanim, RG No. 15/15648.

matches: v. v. CJEU v. CJEU v.


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PUBLIC CHOICE OR CURE FOR AGENDA CONTROL?
(c) 1993 by K.K. DuVivier.
Discussion draft; please do not cite or quote without permission of author.
The ballot initiative process is barely a century old, and some of its major flaws are just now coming to light. In this age of the sound byte, a simplified "yes/no" choice is an appealing solution to complex questions. A s with legislation, voters are content to let someone else figure out the details.
Initiative law, however, has none of the checks of the legislative process. Initiative drafters, unlike elected representatives, are not accountable to voters in the electoral process. Although many drafters may believe their efforts are altruistic, publi c choice theory demonstrates that initiative drafters can manipulate the initiative process to promote their own individual interests. The November 1993 passage of an initiative permitting a single San Francisco police officer to carry his dummy highlights how self-serving initiatives can be.
While many voters hold the initiative process sacrosanct, scholars and legislators have called for changes to an imperfect process. Reforms may be warranted, but those that seek to increase the number of signatures to qu alify a measure for the ballot are misguided. By making ballot accessibility more difficult and by reducing the number of initiatives, these reforms place agenda control more squarely in the hands of a few monied interests.
In contrast, the use of counter-initiatives may mitigate the problem of interest-group agenda control. Counter-initiatives -- multiple initiatives addressing similar issues on a single ballot -- have been widely criticized by the few commentators who have recognized the phenomenon. Because counter-initiatives are a relatively new, but growing, force, most counter-initiative battles are being fought on the ballot, rather than in the courts. California has addressed the interpretation of counter-initiatives, but guidance for interpreting them in other states may come from prece dents addressing the resolution of individual provision conflicts.
Counter-initiatives allow diverse groups to participate more fully in addressing an issue than simply registering a "yes" or "no" response to a general concept. Agenda control is wrested from a single individual or interest group and shared by others most affected by the result. Counter-initiatives can focus the debate and help educate conscientious citizens. Although a simple choice may be appealing, counter-initiatives force all voters to recognize their role in and accountability for the detailed outcomes resulting from citizen-made laws.
The November 1990 ballot in California represented one of the largest counter-initiative battles in history. The battle started with the introduction of "Big Green," a comprehensive "16,000-word environmental measure that would curtail the felling of ancient forests, halt the spraying of dangerous pesticides and restrict offshore oil drilling. . . ." Big Green was not stringent enough f or some, so "anti-logging militants" introduced a "more radical anti-logging initiative." Fearing that simply to oppose the other initiatives would be a losing strategy, the timber industry entered the fray by countering with Proposition 138, a more moderate regulation of timber harvesting.
On the same 1990 ballot in California, another battle raged over taxes on alcoholic beverages. Several groups including The California Chapters of Mothers Against Drunk Driving, The California Association of Highway Patrolmen, and The California Council o n Alcohol Problems sponsored Proposition 134, an initiative statute to place a "nickel-a-drink" tax on alcohol to fund various health, mental health, and criminal justice programs. The alcohol industry responded first by lobbying the legislature to place a legislative constitutional amendment concerning taxes on alcoholic beverages on the ballot for citizen approval. Second, the alcohol industry helped fund a "Trojan horse" or "ballot virus" measure, Proposition 136. Under the guise of a taxpayer's right to vote on new taxes, a provision in Proposition 136 could have invalidated completely Big Green and Proposition 134, as well as two crime control measures.
Of the seventeen initiated measures on the California statewide ballot in 1990, only three passed. All of the counter-initiative measures failed. Although the use of counter-initiatives waxes and wanes, in most states they are a viable method of introducing alternative viewpoints. The lessons to be gleaned from states and local governments with a history of counter-initiatives use may well benefit those that have not yet experienced this phenomenon.
Part I of this article will provide some history of initiative and counter-initiative use throughout the states. Part II addresses how portions and entire initiative measures have been deemed in conflict and how such conflicts have conventionally been resolved. Finally, in Part III, voting theory is discussed and the role of the counter-initiative in balancing the agenda control special interests have exercised in formulating initiatives without opposition.
Twenty-three states and the District of Columbia have constitutional or statutory provisions relating to some form of statewide initiative for constitutional amendments or statutory enactments. Some states have both constitutional and statutory initiatives.
The initiative is somewhat a "western phenomenon" in the United States because eleven western states and eight midwestern and plains states have initiative provisions. In contrast, only two eastern states, two southern states and the District of Columbia have such provisions. The Commonwealth of Pennsylvania section of Common Cause is currently attempting to introduce the initiative process in that state.
Not only are initiatives enacted independently of the legislature, in many states the executive veto is not permitted, and the legislature may not amend or repeal an initiative measure.
The first states to adopt the statewide initiative procedure were South Dakota and Oregon in 1898. In California, the initiative and referendum process was introduced after a fifteen-year struggle by the Progressive movement culminated in the election of its candidate Governor Hiram Johnson. Governor Johnson won largely on the promise to stop the corruption of "the former political master of this State, the Southern Pacific Company."
In the early decades of the twentieth century, initiatives were numerous and commonplace. Beginning in the early 1940s and extending through the 1960s, initiative politicking declined substantially in all states. Many experts came to believe it was out of date.
Some commentators credit angry voters in California with the rebirth of the initiative process. Since California voters passed Proposition 13 in 1978, initiatives have seen a dramatic resurgence. In some states direct democracy legislating rivals legislating by the elected representatives or the executive in terms of overall policy significance. "'Initiative fever' [in California] has reached epidemic proportions."
Initiative use has surged in response to a growing public disenchantment with federal and state elected officials. Many voters have a jaundiced view of their elected officials fueled by negative campaigns and massive PAC contributions from special interests. "The initiative gives the public, at least in some states, a chance to bypass these 'tainted' politicians and government institutions and take power into their own hands. Clearly, public disillusionment with elected officials has helped generate a new interest in the initiative."
California and Oregon alone have accounted for one-third of all initiatives qualifying in the 1980s. Throughout this century, these two states have had the highest consistent initiative propensity. Montana, a moderate-use state overall, was the third most active initiative state in the 1980s. The five high-use states (Oregon, California, North Dakota, Colorado, and Arizona) account for nearly 60 percent of initiatives qualified in the 23 initiative states.
At the other end of the "initiative-propensity continuum," five states accounted for only 7 percent of the state initiatives (Idaho, Maine, Nebraska, Nevada, and Utah).
In terms of numbers of measures and pages in the ballot handbooks, the use of counter-initiatives contributes significantly to the proliferation of measures on each ballot. The November 1990 ballot in California had seventeen initiatives and constitutional amendments, the highest number since 1914 when there were also seventeen initiatives. Three-fifths of the total measures ever submitted to California voters have been introduced during the last twenty years, or just one-quarter of the initiative's history in the state.
The November 1988 state ballot in California also sported multiple counter-initiatives. Four initiatives dealt with reform of automobile insurance rates (Propositions 100, 101, 103, and 104). Only one of the four, Proposition 103, passed. In May 1989, a declawed version of Prop. 103 was upheld by the California Supreme Court; the court said Prop. 103 was valid, but the insurance commissioner can grant relief from rollbacks, where necessary to establish "fair and reasonable" premium levels.
In Colorado, the November 1992 statewide ballot contained ten initiated constitutional amendments, the highest number on the Colorado ballot since 1912 when voters were asked to vote on fourteen constitutional amendments. Of the ten initiatives in 1992, four constitutional amendments addressed gambling in different areas in the state. The ten measures on the Colorado ballot in November 1992 were distilled from about forty-five different voter petitions circulating before the election (six for a school voucher concept, eleven for gambling). The remaining measures did not garner enough valid signatures to be placed on the ballot.
Although counter-initiatives tax voter patience and require more time to study the issues and to vote, few citizens are willing to abandon this safety-valve process. In a statewide poll conducted in 1985 by the Institute of Politics & Government, seventy-one percent of Californians said they liked the initiative process. "Clearly, the initiative and referendum processes offer expedient means for citizens to ask and answer those politically sensitive questions that politicians have successfully avoided." "[I]t enlivens political debate and offers a needed pipeline for reform."
In Colorado, in a special poll conducted in 1990 by Talmey-Drake Research, more than fifty percent of voters said they "think there are 'not enough' ballot issues." An additional fifteen percent thought "there are the 'right number.'" Combined, about "70 percent [expressed] satisfaction with the process."
In an effort to halt this locomotive coming upon them, some states have turned to reforms. One proposed solution is to increase the threshold number of signatures to qualify a measure for the ballot. Change such as the "indirect initiative" would put a measure to public vote only if it failed to pass in the legislature. Despite shortcomings with the process, few voters are willing to give the initiative up. "They view it as sort of a whip, something to hold over the head of the Legislature. . . . There's something fundamentally important about it."
In states that permit citizen initiatives, several initiative measures frequently appear on the ballot. How then is it determined that two or more initiatives are counter-initiatives? Few courts have addressed the invalidation of one entire initiative by a countervailing measure. More often judicial analysis has focused on a determination of specific conflicting provisions.
This section will address how courts traditionally have defined conflict and how they have resolved such conflicts in the context of both individual initiative provisions and entire counter-initiatives.
In 1912 the United States Supreme Court determined that the initiative system of direct democracy did not violate the federal Constitution's guarantee of a "republican form of government." Since that time, courts have focused not on the legitimacy of the process, but instead "on the standard of legal review to be used in assessing the legitimacy of individual ballot initiatives."
While some commentators have urged heightened judicial scrutiny of initiatives, "judicial acceptance of ballot propositions has been essentially unquestioning and laudatory of the process." Courts generally give ballot initiatives great deference and express reluctance to overturn them. A few states have even stripped their judiciary of the power to review initiatives at all.
Despite strong arguments concerning the need for judicial intervention, courts seem sensitive to claims that they are elevating their judgments over the expressed will of the people. "While the initiative and referendum may not fit into a given philosopher's model, and while these powers may, like any others, be misused from time to time, one would hope that the courts will not fall prey to the elitist argument that the people do not know what is best for them and therefore need someone else to tell them." Most recently, the United States Supreme Court declined the opportunity to require higher judicial scrutiny for an initiative measure when it upheld California's property tax relief initiative Proposition 13.
Because of the revered status of citizen-made law, it is not surprising that initiatives are rarely invalidated in their entirety. Generally, only severed portions of an initiative are found invalid; the remaining provisions may be implemented. In California, the courts have completely invalidated only three of the twenty-nine initiatives passed since 1974. Counter-initiatives played a key role in these invalidations; two of the three were invalidated as irreconcilable with a conflicting alternative. Thus, the survival of any of an initiative's objectives may hinge on whether it is classified as a counter-initiative.
Because there is a presumption that all law should be given proper effect, whether passed directly by the people or by their representatives, the courts generally are cautious in determining that initiatives contain mutually exclusive provisions. The analysis requires first a determination of conflict under a range of tests. Second, state by state rules determine how the conflict is to be resolved.
Most often the issue of conflict in statutory or constitutional provisions arises when a subsequent provision is enacted. However, there is a strong presumption against implied repeal of a statutory or constitutional provision by subsequent enactment. The rule applied to legislation providing that subsequent enactments are "to be construed harmoniously with antecedent provisions" frequently applies as well to initiatives.
When there is an irreconcilable conflict, however, the most recent enactment, even if passed by fewer voters than the previous initiative, prevails because the later in time is "the latest expression of the will of the people" or "the last word from the people." Thus, a ballot proposal cannot be invalidated simply because it conflicts with an existing provision. If passed by a majority, the new law supersedes previous versions.
Three states have methods of determining conflicts and grouping counter-initiatives as alternatives on the ballot. In Massachusetts, citizen-sponsored initiatives may be juxtaposed if the legislature determines they are "alternative measures." In Washington state, the legislature may propose an alternative to a citizen initiative. Voters are given the option first of indicating whether they wish to vote for either measure or none. If the voters indicate they do wish to choose one of the measures, they then vote their preference. If the majority of voters wish to make a choice, then the measure receiving the majority of votes becomes law. Only one measure can become law. Maine also has a system for juxtaposing a legislature-sponsored initiative on the ballot as an alternative to a citizen-sponsored measure.
In states that do not have a method for defining conflict on the ballot itself, conflicts must be determined, and resolved, after the election. Fourteen of the twenty-three initiative states have constitutional or statutory provisions to resolve conflicts if counter-initiatives are adopted in the same election. However, implementation of these conflict provisions is avoided if the court determines that the initiative measures can coexist harmoniously. Then neither initiative can be considered void for being inconsistent with the others.
There is no uniform test for determining whether initiative provisions conflict because the constitutional and statutory requirements vary widely from state to state. However, the methods for determining conflict fall generally into one of three categories: (a) Do the provisions of one initiative "imply the repeal" of another? (b) Do the initiatives have the same ultimate "purpose" achieved through similar "means"? or (c) Does the language of one of the initiatives expressly state that a conflict exists? Under the narrowest implied repeal test, few initiative provisions would be invalidated as conflicting. If express statements of conflict in an initiative are upheld by the courts, they provide the most extensive opportunities to invalidate other initiatives through a presumption of conflict.
Under the "implied repeal" test, two ballot measures are in conflict if one measure would have impliedly repealed the other had it been enacted later. This test requires extensive overlap of two potentially-conflicting provisions and is the most stringent for determining conflict.
A form of the implied repeal test was applied by the Massachusetts Supreme Court in Buckley v. Secretary of Commonwealth.74 The Massachusetts Constitution permits the legislature to group two or more initiative provisions on the ballot as alternatives to each other. Although the Massachusetts Constitution provides no guidelines for identifying measures as alternatives, the convention debates suggest that the concept of "alternative measures" involves those "which overlap, are logically inconsistent or for other objective reasons could not or should not stand side-by-side as law together." The Buckley court refused "to give an overbroad meaning to the word 'substitute'" and narrowed the legislature's right to craft an alternative proposal. The legislature had the power only "to edit, polish or amend an initiative proposal while retaining in that process the sense of the proposal so revised." Because a legislative proposal for stiffer sentences in gun-related crimes was "quite different in context and effect" from a citizen initiative banning the private possession and sale of handguns, the Buckley court found the two measures were not true alternatives and could not be placed on the ballot as such.
The Colorado Supreme Court has traditionally used a form of the implied repeal test. The court articulated the test with the following question: "Does one [initiative provision] authorize what the other forbids or forbid what the other authorizes?" Employing this test, the court found that the differences between portions of two constitutional amendments concerning the process of reapportionment were irreconcilable and the provisions in the amendment receiving the most votes would prevail.
A less restrictive test for determining whether initiative provisions are in conflict is the "purpose and means" test. Under this standard, any two measures accomplishing the same general purpose by substantially similar means could be considered in conflict.
The Alaska Supreme Court applied a form of the purpose and means test in Warren v. Boucher.82 Under Alaska law, a citizen initiative may be invalidated if the legislature enacts a statute that is "substantially the same as the proposed [initiative]." The Warren court stated that "[the legislature] has broad power to change an initiative" and emphasized that it was not "passing here on the question of whether an amendment so vitiates an act passed by initiative as to constitute its repeal." Instead, the court concluded that the two campaign funding measures before it were "substantially the same" because they "accomplish the same general goals" and because they "adopt similar, although not identical, functional techniques to accomplish those goals." Therefore, the citizen initiative was void.
The California Supreme Court also seemed to apply a form of the purpose and means test in Taxpayers to Limit Campaign Spending v. Fair Political Practices Comm'n.87 Although the two propositions set forth varying schemes for campaign reform, the court looked to the overall purpose of the initiatives and how they were presented to voters to conclude that they were mutually exclusive alternatives. "[W]hen two or more measures are competing initiatives, either because they are expressly offered as 'all or nothing' alternatives or because each creates a comprehensive regulatory scheme related to the same subject . . . ," the two propositions conflict and only the one with the highest number of supporting votes can become law.
There is even some indication that Colorado may be moving away from the traditional implied repeal test. In Submission of Interrogatories on Senate Bill 93-74,89 the Colorado Supreme Court first reiterated its confidence in the traditional test by stating that it "should not resort to rules that give effect to one provision at the expense of the other unless there is irreconcilable, material, and direct conflict between the two amendments." Applying the traditional test, the Colorado Supreme Court found "no irreconcilable, material, and direct conflict" between Amendment 1 (a comprehensive tax-reform and budgetary measure) and Amendment 8 (a funding mechanism for recreational lands). This conclusion would seem to permit all provisions of both amendments to take effect.
However, the Senate Bill 93-74 court went on to recognize an "implicit conflict" between the two amendments. The court then continued its analysis with an emphasis on each amendment's purpose: how to balance the underlying purposes of each amendment in an effort to "give effect to the expression to the will of the people in enacting both amendments." Finally, Amendment 8 prevailed because its proceeds were exempted from the restriction provisions of Amendment 1.
One of the newest devices on the initiative scene is language expressly stating that the initiative, or portions of it, are in conflict with one or more initiatives on the same ballot. Such an express provision is an efficient method of defining conflict. With the wording in the initiative itself, voters are put on notice of the conflict and their obligation to make a choice between options. Furthermore, if the initiative containing the conflict language passes with a greater number of votes, the courts might interpret the conflict provision as an express mandate of the people.
In its most benign form, such a statement of conflict would only express the obvious: that two provisions dealing with the same subject matter conflict. However, some recent initiatives have contained more expansive expressions of conflict. Such an expansive provision has been variously dubbed a "winner-take-all" provision, a "ballot virus," or a "Trojan horse."
Proposition 136 on the November 1990 ballot in California contained one of the most extensive ballot virus provisions yet proposed. Hidden in the Trojan horse guise of a proposition that would limit taxation and allow more voter control of finances, Proposition 136 contained language that could have infected and completely eliminated four unrelated measures on the November 1990 ballot.
Opponents challenged Proposition 136 as a violation of California's single subject rule. Under Proposition 136's terms, any propositions that conflicted in part -- whether they addressed environmental concerns, crime control, or liquor taxes -- became "void in their entirety."
Voters resolved the battle of Proposition 136 and its ballot virus provision; the measure was defeated at the polls before the California Supreme Court had an opportunity to rule on its validity. No other state courts have yet been challenged to interpret a similar ballot virus measure.
Once the provisions of two initiatives are deemed to be in conflict, the states have two basic methods for resolving the dispute. In eight of the fourteen states that address conflicts, only one measure can become law if more than one initiative passes on the same subject. In these states, if two or more measures on the same subject are enacted, then "the one" or "the measure" or that entire initiative receiving the highest number of affirmative votes prevails.
In contrast, five states require that most provisions of conflicting initiatives be harmonized. If two or more initiatives are passed dealing with the same subject, then the provisions of the one receiving the fewer votes are void only if they conflict with specific provisions in the measure receiving more votes. If two or more measures are adopted, then the one receiving the greatest number of votes shall be adopted "in all particulars as to which there is a conflict" or "as to all conflicting provisions."
Traditionally, California has resolved conflicts by harmonizing provisions. For example, in Estate of Gibson v. Bird,106 the California Supreme Court attempted a provision-by-provision comparison of two successful measures that both repealed the state's inheritance tax laws in 1982. The court determined the two measures were essentially the same, but they conflicted only with respect to the effective date. Therefore, the initiative receiving more votes, and its effective date, superseded only the conflicting measure's retroactive date-section. All other provisions were harmonized.
Recently, in Taxpayers to Limit Campaign Spending v. Fair Political Practices Comm'n,107 the California Supreme Court determined that section 10(b) of the California Constitution did not always compel a section-by-section reconciliation. Instead, based upon a historic interpretation of constitutional language, the Court permitted a complete invalidation of the conflicting initiative. A fact that helped persuade the Taxpayer court not to harmonize provisions was that four attempts were made by various governmental bodies to reconcile the conflict. Provision-by-provision analysis achieved no less than three different "Frankenstein's monster" interpretations: one by the Legislative Counsel, one by the Fair Political Practices Commission, and one by the court of appeals. The combined results would produce more restrictive campaign finance reform laws than either Proposition 73 or Proposition 68 above.
The "hybrid regulatory scheme" resulting from harmonization troubled the court for two reasons. First, these hybrids created "unworkable laws." Second, the court was required to apply a "fictious electoral intent" to enact a hybrid scheme.
Taking comfort in the fact that the measures were presented to voters as mutually exclusive alternatives that sought to "propose alternative regulatory schemes," the Taxpayer court concluded that "a fundamental conflict exists." Thus, Taxpayer appeared to create a bifurcated standard of review for counter-initiatives. If two initiatives seek to "comprehensively regulate the same subject," the measure receiving more votes prevails in its entirety. If the conflict between alternatives is minor, non-conflicting provisions are harmonized.
California decisions since Taxpayers have avoided invalidating any conflicting initiatives in their entirety. In some cases, the conflict between two initiatives has been characterized as minor, and the provisions of both initiatives are combined. In Yoshisato v. Superior Court,119 the court determined two measures relating to criminal justice were "complementary and supplementary" rather than "competing" because they were not presented to voters as alternatives. Non-conflicting provisions were again harmonized.
The court's focus in both Taxpayers and Yoshisato on how a measure is presented to the voters may signal how initiative-created conflicts will be resolved. If the express statement of conflict is specific enough for the court to presume that voters are on notice that the two measures cannot coexist, the courts may enforce the provision and invalidate the measure receiving less votes. If the conflict provision in an initiative attacks by stealth, like the ballot virus in Proposition 136, the courts may not find it controlling. The very fact that other measures are passed by a majority, when voters presumably knew they would be invalidated in their entirety, might repute any presumption that the conflict provision should be applied.
Through the initiative process, the people gained an ability to set the political agenda. If the legislature avoided a controversial issue, the people could spotlight it by placing that issue on the ballot.
Because initiatives become law by majority vote, they are afforded significant validity as the "will of the majority." Although courts often serve a countermajoritarian function by protecting the rights of individuals and minority groups, there is a presumption that a majority vote on an initiative legitimately reflects the will of most people. Furthermore, our society has an attitude "in which majoritarianism enjoys increased attention and acceptance."
However, voting theory places into doubt the presumption that a true majority preference can accurately be measured. Manipulation of how a question is presented, or "agenda control," can often determine the outcome of a vote. When different alternatives are presented, the majority of voters can "cycle" through different choices and no single alternative reflects a stable or true majority preference.
The ballot initiative represents one of the most extreme opportunities for agenda control in modern lawmaking. In addition, this agenda control rests in the hands of a few unelected individuals. Initiative drafters have unchecked power to formulate the issues to be addressed by a ballot measure. In contrast to the legislative process, once the initiative is drafted and voted into law, there are no opportunities for negotiation or amendment.
Under Public Choice Theory, the basis for political conduct is self-interest. Since the early 1970s, cost factors have driven the initiative option out of the grasp of smaller volunteer efforts. There has been a growing trend for initiatives to be available only for highly motivated and well-funded interest groups. Reforms that require additional signatures to qualify a measure for the ballot only exacerbate the problem by deepening the chasm between volunteer efforts and moneyed interests.
Counter-initiatives have been widely criticized for confusing voters. However, in theory, counter-initiatives provide voters with many alternatives, instead of simple yes-no choices, and should therefore provide better barometers of the will of the majority.
Ballot initiatives present a highly artificial dipolarity. Voters are given only a binary yes-no choice on any issue. In fact the number of alternatives could be as great as the number of individual voters attempting to record their preferences. Yet, generally in the initiative setting, alternatives are not addressed and voter's individual preferences may not be registered. In reducing complex questions to such simplistic terms, the ballot initiative recreates the paradox of pairwise voting.
In 1785, the Marquis de Condorcet first observed that no accurate majority preference could be measured when three or more mutually exclusive alternatives were grouped for a vote into sequential paired alternatives. Thus "majority rule may not be able to resolve the choice among three or more mutually exclusive alternatives." This voting paradox evolved into the study of collective choice or choice "from among multiple alternatives that are mutually exclusive." The theory was expanded by Arrow and applied to most decision-making processes.
In simplified terms, the paradox arises because no true majority preference can be measured. The majority vote cycles to different choices as alternatives are provided. The probability of the paradox's occurring increases rapidly when the number of individuals voting is large and the number of [citizen] preferences is multidimensional.
The presumed majoritarian outcome resulting from a statewide ballot initiative is given great deference by the courts. Criticism of judicial review often focuses on the court's interference with the expressed will of the majority. Yet, because of the voting paradox, the initiative, which attempts to poll millions of individual preferences, is an inaccurate measure of true majority preference, if such a preference in fact exists.
Because the majority preference can cycle to different choices under the paradox, the party controlling the agenda, or presentation of choices, often controls the outcome. Thus, the paradox raises a "grave skepticism about whether the product of any decisionmaking process can be thought to represent a true ordering of preferences untainted by the constraints of the selection process. . . . Within each ranking of preferences is the 'cycling' problem of divergent preferences being forged into a majority vote by the constraints of the selection process. . . ."
When the conditions of the paradox exist, the actual choice among alternatives is determined by how the choices are ordered. Thus, "the person who sets the agenda can control the outcome." With ballot initiatives, the drafters are often moneyed minority interests that can exploit agenda control to leverage their position into a majority vote.
Social Choice Theory provides an effective, albeit simplified, model for understanding the trend in initiative use in the last two decades. Small, single-minded, well-organized interest groups can convey their messages more effectively than large dispersed groups with diverse agendas. Ballot initiatives provide the ideal vehicle for such interests. There are no legislative-process checks nor is there any accountability through the electoral process.
Initiatives are drafted by unelected individuals or partisans of interest groups. They are often clumsily written. Portions may be invalidated and produce disappointing results because the authors were more interested in making a statement than writing law. Sometimes they are written to specially benefit the drafter. Legislation undergoes "hearings, debates, discussions, and calm deliberate decision-making by representatives whose full-time job is to become thoroughly informed. All of these deliberative procedures are bypassed by the initiative process." Once an initiative becomes law, there is no process for amendment other than to have the voters pass an opposing measure.
The electoral process also provides a check on special interests that is not available in the initiative setting. Certainly, money wields power in the legislature. "Payments take the form of campaign contributions, votes, implicit promises of future favors, and sometimes outright bribes. In short, legislation is 'sold' by the legislature and 'bought' by the beneficiaries of the legislation." However, legislators must face reelection, and they cannot be overly responsive to the pressures of special interest groups without negative repercussions at the ballot box.
Initiatives are a way for politicians to avoid responsibility and for special interests to get their own way on issues. "There is no electoral downside for special interests for putting them [initiatives] on the ballot." Thus the legislative process minimizes the impact of minority manipulation, the initiative process rewards it.
Special interest groups have quickly moved in to make use of the initiative process. Since 1978, the trend has been toward "professionalization." "What was once a valuable agenda-setting mechanism for citizens has increasingly become a tool of professional special interest groups." Money has become the predominant factor. "It used to take a ground swell of popular support to get something on the ballot. Now its just money and special interests."
After Meyer v. Grant,147 the initiative process experienced a loss of innocence. Paid signature gatherers are now a fact of life. Even citizen "grassroots" organizations such as Common Cause use them. In California, a whole industry gathers signatures and hawks propositions. At forty to sixty cents a signature, it can cost from $850,000 to one million dollars to gain enough signatures to qualify an initiative for the ballot in California. It was a $130 million bonanza for political consultants, advertising agencies, and television stations in 1988. "Anyone with the money has been able to grab the state's soap box for an election cycle."
Lowenstein documented that funding was the primary factor in determining the outcome of an initiative battle. Despite popular enthusiasm for a measure, increased spending by the opposing campaign could ensure its defeat. At one time civic organizations and volunteer groups could qualify an initiative. "Today, a viable qualification effort requires exorbitant financial resources, professional administration, and access to sophisticated campaign technology."
The counter-initiative has been almost universally maligned as an obfuscatory process. Its critics argue that monied-interests have unfairly used the process to oppose and defeat legitimate citizen measures and that there is something dishonest or insidious in launching a counter-initiative instead of simply mounting a "Vote No" campaign against the original measure. They suggest it is inappropriate to bill counter-initiatives as more moderate or simplified proposals.
In some instances counter-initiatives have been deceptive. Yet, because the wording of any initiative is determined by an unelected and unaccountable individual or small group, it is the imperfect initiative process itself that provides opportunities for manipulation of voters. There is no guarantee that the drafters of original initiatives have any purer motives than those of a counter-proposal.
One of the original objectives of the initiative was to educate voters and make them participate more in the political process. Counter-initiatives can facilitate citizen education and participation. In the past two decades, the complexity of initiatives has been increasing; many require a post-graduate education to read and interpret. As a strategy for luring more voters, some counter-initiatives are simpler and more focused on a few issues than the original measure. Thus, counter-initiatives can provide an impetus for simplifying all initiatives.
Although it may be "pure mythology" to "suggest that voters approve, let alone underst[and], the many facets" of complex initiatives, courts continue to apply a presumption that the public understands what it is voting for, or else risk being charged with elitism. If voters truly understand complex initiatives, counter-initiatives should pose no threat. By proposing alternative language for key provisions, counter-initiatives can focus the debate and better educate citizens about the specific type of reform proposed.
With a single initiative, educated voters are given only one option --change as structured by the initiative's authors, or no change. The major benefit of the counter-initiative is that it wrests this agenda control away from a single interest group. By allowing different groups to frame the question and provide voters with alternatives, counter-initiatives provide well-informed voters with better opportunities to define their preferences.
A recurring criticism of the Taxpayers decision is that in invalidating Proposition 68 entirely, the court interfered with implementation of the will of the majority. If both Proposition 73 and Proposition 68 passed by a majority vote, shouldn't Proposition 68 be enforced when key portions of Proposition 73 were declared unconstitutional? This reasoning ignores the fact that majorities can vary initiative by initiative. 2,720,605 citizens voted for Proposition 68. Although this figure was a majority of all of those voting on Proposition 68, it was not a majority of all voters casting ballots in the June 7, 1988 election. If the total number of voters is considered, a majority of voters either voted "No" or did not vote at all on Proposition 68. If non-votes are treated as "No" votes, it was reasonable for the Taxpayer court to assume that Proposition 68 was not supported by the majority of California voters.
The presumption of informed voters can cut both ways. Although it is generally used to uphold an initiative, the presumption supports the Taxpayer result of invalidating Proposition 68 completely. Because the campaign literature marketed the two propositions as irreconcilable alternatives and urged voters to vote for their measure and against the alternative, voters who studied and understood this literature would not have voted for both Propositions.
The assumption that a non-vote is equivalent to a "No" vote favors the status quo and seems reasonable in the context of counter-initiative interpretation. It is possible to assume that California voters simply wanted reform and voted for both Proposition 73 and 68 to achieve that end. A presumption that a non-vote is a "No" vote would penalize those voters who come to the polls simply seeking reform, but not bothering to educate themselves that one method of reform might be better than another or that the two measures had been presented as irreconcilable alternatives.
Citizens should be entitled to express such general opinions, but initiatives result in detailed and complex law. Few initiative supporters would advocate a system that produces such laws through a process of uninformed decisions based primarily on the visceral responses of impressionable voters. Manipulation then becomes a serious threat. If no initiative passes, the issue may be passed on to the legislative process where representatives can be educated on the benefits of alternatives and the result can be buffered by traditional balances.
Ballot initiative use has burgeoned in the last twenty years. Dissatisfaction with the resulting laws and campaign tactics has spurred calls for reform. Although reform may be needed, one solution -- requiring a higher threshold of signatures to qualify m easures for the ballot -- is misguided because it restricts the use of counter-initiatives.
Counter-initiatives may have been used to manipulate voters in the past, but the opportunities for abuse come from the shortcomings of the initiative process and not from the counter-initiative itself. In fact, the use of counter-initiatives can be salutary for the initiative process.
A counter-initiative may be more cost effective than an opposition campaign. Furthermore, while the original initiative permits a single group or individual to control how an issue is to be addressed, counter-initiatives permit several groups to shape the agenda on a particular issue.
Finally, a counter-initiative's structure or an express provision identifying conflict, may facilitate how courts resolve conflicts between alternative measures.

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41. Serum level of YKL-40 does not predict advanced liver fibrosis in children with chronic hepatitis B / D.M. Lebensztejn et al // Advances in Medical Sciences. — 2007. — V. 52. — P. 120—124. 42. Hyaluronic acid predicts hepatic fibrosis in children with hepatic disease / J.L. Hartley et al. // J. Pediatr. Gastroenterol. Nutr. — 2006. — № 2(43). — Р. 217—221.
42. Noninvasive evaluation of hepatic fibrosis in children with infant hepatitis syndrome / Z.X. Li et al. // World J Gastroenterol. — 2006. — V. 28. — № 12(44) — P. 7155—7160.
43. Longitudinal evaluation of a fibrosis index combining MMP-1 and PIIINP compared with MMP-9, TIMP-1 and hyaluronic acid in patients with chronic hepatitis C treated by interferon-alpha and ribavirin / С. Trocme et al. // J. Viral. Hepat. — 2006. — V. 13(10). — P. 643—651.
44. Long-term histological prognosis and serum fibrosis markers in chronic hepatitis C patients treated with interferon / Н. Kojima et al. // J. Gastroenterol. Hepatol. — 2001. — V. 1, N 9. — P. 1015—1021.
45. Serum amino, terminal propeptide of type III procollagen and 7S domain of type IV col, lagen correlate with hepatic iron concentration in patients with chronic hepatitis C following alpha,interferon therapy / I. Shimizu et al. // J. Gastroenterol. Hepatol. — 2001. — V. 16, N 2. — P. 196—201.
46. Matrix metalloproteinases and their tissue inhibitors in children with chronic hepatitis В treated with lamivudine / D.M. Lebensztejn et al. // Adv Med Sci. — 2007. — V. 52 — P. 114—119.
47. Сывороточные маркеры фиброза печени у детей: диагностическое и прогностическое значение / С.Б. Чуелов и др. // Педиатрия. — 2008. — Т. 87. — № 6. — С. 67—73.

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Helpful reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, showing the Plaintiff friendly scope of the Indivisible Injury principle.
In today’s case (Griffioen v. Arnold) the Plaintiff was involved in two vehicle collisions. The first in 2011. She sued the at fault motorist who admitted liability. She was involved in a second collision in 2014. She was a passenger in her husband’s vehicle. He was at fault for the second crash but she chose not to sue and the limitation period to do so expired. The second crash aggravated the injuries from the first.
 In this case, the plaintiff elected not to sue her husband, who was the person at fault in the second accident. She admits that he was at fault and that her right to bring an action is now statute-barred by the Limitation Act, SBC 2012, c. 13.
 There can be no question that Athey [Athey v. Leonati,  3 S.C.R. 458] requires joint and several liability for indivisible injuries. Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff. They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.
 The approach to apportionment in Long v. Thiessen [(1968), 65 W.W.R. 577 (C.A.)] is therefore no longer applicable to indivisible injuries. The reason is that Long v. Thiessen pre-supposes divisibility; Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial. Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.
 In Pinch v. Hofstee, 2015 BCSC 1888, the plaintiff claimed compensation arising from a motor vehicle accident. He was subsequently injured in a second accident and the injuries from the two accidents were found to be indivisible. The court considered Bradley v. Groves, but found that any claim for the second accident was statute-barred by section 10(1) of the Workers Compensation Act. Burnyeat J. held that the plaintiff could not recover full damages from the defendant in the first accident.
 I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages. Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of duty of care. A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred. In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts. Just as a claim for damages for a second tortious act could not “give life to” recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.
 In Sandhu v. Vuong, 2016 BCSC 1490, Master Baker followed Pinch v. Hofstee, and held that the defendant in one action could not commence a third party proceeding against a person liable for a second accident that happened in Manitoba because the accident there was statute-barred by a “no-fault” automobile insurance regime.
 I do not agree that the situation here is the same as where an action is statute-barred as in both Pinch and Sandhu. There was no right of action in British Columbia against the person liable for the second accident. In Pinch, the Workers Compensation Act prevented an action and in Sandhu, the court held that as there was no right of action in Manitoba, there could not be a right in British Columbia.
 In both Pinch and Sandhu, the plaintiffs were not simply beyond the time limit for commencing an action, but would be barred by statute from commencing an action even if they had done so within the statutory time limits.
 It seems to me that it was open to the defendants in this case to commence a third-party action provided it was commenced within the time limit that started when the defendants became aware of their right to commence an action against the plaintiff’s husband. That is, the time limits for the defendants may not be the same for a third party action as for an action by the plaintiff.
 The plaintiff obviously knew of her right to commence an action from the time of the accident. The defendants were aware of their right to commence an action from the time they discovered they might be liable for some damages from the second accident. I therefore find that Pinch and Sandhu are distinguishable from the facts of this case and in the circumstances, I am not prepared to apportion liability to the plaintiff’s husband in reliance on the principle of indivisibility and will apply the principle in Bradley.
Interesting reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding a street racer partly liable for the death of a passenger in another vehicle that he did not collide with.
From the vault of how not to represent yourself in court, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, admonishing a self represented litigant for providing the Court with perjured evidence.
 This turn of events significantly undermined the reliability of the defendant’s evidence.
 … the plaintiff will be awarded one day of special costs for the unnecessary delay in this matter for the consideration of the perjured evidence from the defendant.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating judicial discretion in dealing with costs after a plaintiff fails to beat a defence formal offer at trial.
In today’s case (Barta v. DaSilva) the Plaintiff was injured in a 2007 collision and sued for damages. The Plaintiff alleged traumatic brain injury and argued that he had millions in losses as a result. At trial a jury rejected the alleged brain injury and awarded damages of $77,000 for the Plaintiff’s proven injuries. Prior to trial ICBC offered to settle the case for $150,000.
The Plaintiff sought full costs for the trial where ICBC sought to have the Plaintiff pay their post offer costs or simply strip each party of costs for the trial itself. In the end the court ordered that each party bear their own costs of the trial. In finding this fair the court noted that due to the Plaintiff’s ‘meagre‘ income there would be “no utility in imposing the costs of the trial on the plaintiff.”.
 The evidence at trial indicates that the plaintiff’s assets were severely depleted by the effects of the financial downturn in 2008 and 2009. Mr. Creighton informed me that his client’s income is now meagre. I can see no utility in imposing the costs of the trial on the plaintiff.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for lingering intermittent soft tissue injuries.
In today’s case (Erwin v. Buhler) the Plaintiff was involved in a 2011 rear end collision that the Defendant was responsible for. The Plaintiff alleged that he suffered from bursitis in his hip due to the crash but the Court found this condition was most likely caused by other factors. The Court did find the Plaintiff suffered various soft tissue injuries, some of which remained symptomatic on an intermittent basis at the time of trial.
 I am, however, satisfied that the plaintiff suffered neck, low back and shoulder injuries as a result of the car accident. Notwithstanding Dr. McGraw’s assessment that the plaintiff no longer experiences headaches or neck pain, I find that he has in fact been troubled by these symptoms on an intermittent basis. His low back was really sore for about a month after which Dr. McGraw assumed the pain was resolved. I also accept that he has intermittent low back and neck pain.
 I have concluded from all of the evidence that the plaintiff suffered neck, shoulder and low back injuries at the time of the accident. Although the symptoms seem to have mostly resolved within one year of the accident, he has continued to experience intermittent back, neck and shoulder problems related to activity.
 It is difficult to discriminate between the impacts on the plaintiff’s life arising from the trochanter bursitis and the other soft tissue injuries he suffered. Nonetheless, I accept that he is at an age where the severity and duration of ongoing pain, albeit intermittent, is troublesome for him. His compensable injuries co-exist with his non-compensable injuries. I am satisfied that the demands of his work elevate his trochanter bursitis symptoms but also his neck and back symptoms. It is hard to estimate whether he will eventually become asymptomatic in his neck and back areas but I find that they will continue to impact his life in the near future. The defendant need not compensate the plaintiff for his hip complaints but, his overall quality of life seems to be affected by the compensable injuries on an intermittent but troublesome basis for him.
 The cases cited by the plaintiff did not provide much assistance in assessing the plaintiff’s non-pecuniary damages. In my view, the circumstances described in Stein are most helpful to my assessment of the plaintiff’s claim in this case.
 Overall, I am satisfied that the plaintiff is entitled to non-pecuniary damages of $40,000.

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Does the inevitable dissipation of alcohol in blood alone constitute an automatic exigency to support a non-consensual, warrantless blood test during a DWI investigation?
No, but—depending on the “totality of the circumstances” in a particular case—an exigency may develop. Otherwise, a warrant is required.
The totality of the circumstances test is fine in general, but drunk-driving cases are a discrete class, and the court should provide more guidance.
This decision profoundly affects statutory blood draws in Texas. Expect motions to suppress in pending intoxication manslaughter and intoxication assault cases if you have blood draws performed pursuant to the statute rather than a warrant.
Is the applicant entitled to mandamus relief because the district clerk unilaterally assessed $7,945 in reimbursement fees for court-appointed counsel nine years after judgment was entered in the applicant’s forgery of a check case?
Yes. Although the petition was submitted under CCP art. 11.07, the court looked to the substance of the application and found mandamus relief appropriate. There is no other remedy available because time for direct appeal has passed, the clerk’s bill of costs is not an appealable order, and the claim is not a cognizable issue for habeas purposes. The applicant was clearly entitled to relief because the trial court made no finding under CCP art. 26.05(g) that the applicant must reimburse the State for the cost of his appointed attorney.
I expect to see more opinions like this as more counties try to cure their budgetary woes by increased cost collections from criminal defendants.
Did the defendant forfeit appellate review of his restitution claims because he failed to object in the trial court?
No. The defendant had no opportunity to object because the oral pronouncement of the court did not include restitution, but the written judgment entered one day later did. He could not have known at the sentencing hearing that the written judgment would differ, and his motion for new trial filed on the same day as the oral pronouncement was denied.
The defendant could have asked the trial court to rescind the order denying the motion for new trial and filed an amended motion for new trial.
The best practice is for the court to determine sentence, fine, restitution, and stacking and assess everything in one proceeding. Anything else opens up a number of issues best avoided.
Did the defendant’s conviction for fraudulent use or possession of identifying information under Penal Code §32.51 violate the doctrine of in pari materia because it conflicts with the statute defining the offense of failure to identify, Penal Code §38.02?
No. PC §32.51 is meant to prevent ID theft and is a property-centered offense. PC §38.02 is meant to ensure officers receive accurate information and prevent the obstruction of governmental operations. Each offense contains elements the other does not, and the Legislature explicitly stated its intent to allow prosecution under either statute when both apply.
This case is particularly useful because the court blessed the Legislature’s language designed to kill in pari materia claims—“[i]f conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.” This phrase has been used in a number of different places in the Penal Code.
Does CCP art. 38.072’s hearsay exception for outcry witness testimony also allow for the admission of the child-complainant’s videotaped statement to the outcry witness?
No. Extra-statutory factors, including the legislative history of CCP art. 38.072 and the existence of a specific statute governing the admissibility of recorded pre-trial statements in CCP art. 38.071, indicate that the outcry statute contemplates a witness’s live testimony subject to confrontation and cross-examination.
The statute does not clearly contemplate that a sponsoring outcry witness must offer the outcry statement through testimony, and it makes no sense to say that a less reliable method of relating the statement (oral testimony) is admissible while a more reliable method (video recording) is not.
The Legislature could solve this problem by making the videotaped statement admissible, which has been done in other states.
Did the trial court properly grant the defendant’s motion to suppress evidence based on the fact that officers, who observed the defendant’s malnourished dogs from the street, entered the curtilage of the home where the dogs were kept without a warrant and without consent?
Yes. The defendant had standing to challenge the search and seizure of the dogs because he at one time lived in the home where his dogs were kept, and he had been given permission from the owner, his aunt, to enter the property daily to care for the dogs. The seizure was not justified under the plain view doctrine because the officers were not lawfully in the yard at the time of the seizure; no exigent circumstance or other exceptions to the warrant requirement allowed for warrantless entry into the yard.
The search, rather than the seizure, is at issue in this case. The defendant had standing because the property seized was his. Whether he had a reasonable expectation of privacy in the curtilage of the home is not dispositive.
Another search case turning on something that happened within the curtilage. This case is also useful to point out the limits of the plain view doctrine.
Did the appellate court have jurisdiction to review the trial court’s order granting the defendant’s motion to quash when the portions of the indictment quashed pertained only to an enhancement allegation, rather than the elements of the offense?
Yes. The plain language of CCP art. 44.01(a)(1) allows the State to appeal any order dismissing a portion of an indictment, even when that portion is the punishment-enhancement paragraph.
Did the defendant show that the bigamy enhancement elevating punishment for sexual assault in Penal Code §22.011(f) is facially unconstitutional?
No. Although his motion to quash properly presented a facial challenge because it alleged PC §22.011(f) creates a class of individuals—those who are married—who would potentially receive a punishment greater than the statute contemplates, he did not prove the statute operates unconstitutionally in all its applications.
Be careful with this opinion—it does not give prosecutors carte blanche to use the particular enhancement in question.
In reviewing the trial court’s granting of the defendant’s motion to suppress, did the court of appeals improperly substitute its own findings of fact for those of the trial court?
Interesting. The officer did not see what would otherwise be a lawful basis for a stop, but it was captured by his in-car video. The officer (or officers working with him) must know the basis for a stop when he makes the stop.
Did the trial court adequately admonish the defendant before accepting his waiver of the right to counsel?
Yes, the trial court’s 12 admonishments adequately covered the dangers and disadvantages of self-representation, so the defendant’s waiver was knowing and voluntary.
Nothing new about the law, but the admonishments should be helpful to practitioners because they are quite comprehensive.


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Adverse Possession is a legal doctrine that gives a person someone else’s real estate. For example, if someone has a fence that is mistakenly built five feet inside a neighbor’s property, and he maintains that property by mowing it and “openly and notoriously” treating it as his own property for the statutory period of time, which is ten years in Washington, it becomes his property. In this video I talk about why buyers should watch out for adverse possession and it’s cousin, the easement by prescription.
In order to establish a claim of adverse possession, there must be possession for ten years that is: (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile. ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). See also Lloyd v. Montecucco, 83 Wn.App. 846, 924 P.2d 927 (1996); Anderson v. Hudak at 404-405 citing Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984); Stokes v. Kummer, 85 Wn. App. 682, – P.2d – (1997); Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, – P.2d – (1997). You can see the actual facts that gave rise to adverse possession by reading these two cases I posted for those of you who want to know more about exactly how this happens.
As a practical matter, when you are buying a home or land in Sequim or Port Angeles, there are tell-tale signs of adverse possession that you should watch for that can indicate the boundary lines may not be the actual survey lines. This doesn’t mean you have to hire a surveyor and spend thousands of dollars to find the corner markers and all the boundaries. That is not always practical and rarely necessary.
Adverse possession and the easement by prescription (also talked about in the video) are traps for the unwary, so be sure you don’t get caught.
Adverse possession is a legal doctrine that takes a portion of your real estate away and gives it to the neighbor, or if you are the adverse possessor, it takes your neighbor’s property away and gives it to you. Here’s a brief audio explanation of adverse possession and why it is important to be aware of it when you purchase a home or land in Sequim or Port Angeles.
When the United States was rapidly growing and land was plentiful, adverse possession was a public policy promoting the efficient use and development of land. That policy no longer seems to have any validity today, but the doctrine is still alive and well.
In order to establish her adverse claim, plaintiff must meet the burden of proof (a preponderance of the evidence) by establishing each and every element of adverse possession under RCW 4.16.020 and as defined in our state courts. The burden of proving the â€œexistence of each element of adverse possession is on the claimant.â€ Hunt v. Matthews, 8 Wn. App. 233, 238, 505 P.2d 819 (1973). See also Lloyd v. Montecucco, 83 Wn. App. 846, 924 P.2d 927 (1996); ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989); Anderson v. Hudak at 404-405 citing Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984); Stokes v. Kummer, 85 Wn. App. 682, – P.2d – (1997); Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, – P.2d – (1997).
In order to establish a claim of adverse possession, there must be possession for ten years that is: (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile. ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). See also Lloyd v. Montecucco, 83 Wn.App. 846, 924 P.2d 927 (1996); Anderson v. Hudak at 404-405 citing Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984); Stokes v. Kummer, 85 Wn. App. 682, – P.2d – (1997); Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, – P.2d – (1997).
A quiet title action is not always the answer to a boundary dispute, a claim of property or a claim of an easement. There are other causes of action and legal issues to consider as you can see in this Quiet Title Checklist.
In Washington you do not have to have a survey when you buy real estate. I’m not suggesting that we should. Claims of adverse possession are so common in Washington, it does make a person stop and seriously consider whether a surveyor should be hired and whether all boundary markers should be identified before committing to close on the property. Even doing all of this does not put you in the save zone, because there are so many incorrect surveys where the corners are wrong or the boundary is off so many inches or fees. There are also many cases where there are two surveys, an old one and a new and correct one, but the orange flags or markers of the original survey are still there marking what appears to be the true corners or boundaries. There is a tremendous volume of litigation in this area. Sequim and Port Angeles have more than their share of adverse possession claims.

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