In the early morning of October 3, 1970 on rural road just outside San Jose, 61-year old Engineer Anthony Gassell was at the controls of his Southern Pacific locomotive as it headed northwest.  At the same time, 24-year old Kathryn Colville was driving with her 2 1/2 year-old son, Paul, to feed her horse.  As the train approached Blanchard Road, Engineer Gassell saw Mrs. Colville’s car suddenly pop off the road in front of the oncoming locomotive.  Although moving at less than one-half the permissible speed, Engineer Gassell was unable to stop the train in time.  Mrs. Colville was ejected from her car and killed.  Paul, dragged for a half-mile, was also killed.  One of the most bizarre consequences of this tragedy was the amendment of California’s constitution.

As with many tragedies, there was ensuing litigation.  In this case, it began as an administrative proceeding.  PUC Decision No. 82933 (May 29, 1974).  The California Supreme Court ultimately overturned that decision in Southern Pacific Transportation Co. v. Public Utilities Commission, 556 P.2d 289 (1976).  In the course of that ruling, the Supreme Court tackled a question that it had previously ducked – whether the PUC could hear constitutional challenges.  Reacting to the Supreme Court’s decision that the PUC could decide the constitutionality of statutes, the legislature placed Proposition 5 on the ballot for the June 1978 election.

Nearly eight years after the wreck on Blanchard Road, the voters approved Proposition 5.  As a result, Article III, Section 3.5 became part of the California Constitution:

An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:

(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;

(b) To declare a statute unconstitutional;

(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.

Of course, there is no similar ban in the U.S. Constitution.  Thus, Administrative Law Judge Cameron Elliot felt no compunction in deciding constitutional questions raised by Laurie Bebo.  In re Bebo, Initial Decision Release No. 893  Admin. File. No. 3-16293