San Francisco Chronicle - (Sunday)
State’s ballot measures put voters at odds with courts
California voters will decide next year whether to keep requiring cash bail for release from jail before trial. Voters may also decide whether to ease the state’s restriction on local rent control and whether to impose a five-year limit on alimony payments.
All three measures have been proposed under
California’s farreaching initiative and referendum laws, which allow some of the most significant and complex legislative decisions to be handed off to the public. Voters are then subjected to advertising campaigns with few limits on their spending or content.
And unlike legislation, which can be amended at the next session to correct flaws, most ballot measures approved by the people are inscribed in stone, at least until the next round
of initiatives.
The one institution that stands above the process is the judiciary — neutral, independent, and free to override voters’ decisions that conflict with the state or federal constitutions.
Or maybe not. Just ask former state Supreme Court Justice Kathryn Mickle Werdegar. Werdegar was the court’s newest member in 1996 when she was assigned a case on the recently passed “threestrikes” initiative. She crafted a ruling that found the law constitutional as long as it was interpreted to preserve judges’ sentencing authority by allowing them, in individual cases, to spare third-time felons from life sentences in the interests of justice. It was a unanimous decision.
The next morning, Werdegar was driving to work in San Francisco when she tuned into a local radio talk show, which turned out to be “devoted to the court’s opinion and how outrageous it was,” she recalled in a recent lecture at UC Berkeley.
Front-page stories that day in newspapers around the state, she said, “referenced the widespread view that the court had thwarted the will of the voters.” That view was shared by an irate Gov. Pete Wilson, who had appointed Werdegar, his friend and former law school classmate, to the court in 1994.
“As a new judge, I didn’t know what hit me,” the now-retired Werdegar said in a recent interview. She said she spent enough time on the court, 23 years, to see “the public sentiments shifted” on three strikes, which has been scaled back by the voters since 2012 to give the legal system more discretion over once-mandatory sentences.
But it was also a lesson in the perils of ruling on initiatives, which put the judiciary, as she told the Berkeley audience, “in the delicate but necessary position of serving as a check on the passions of the majority.”
Ronald George, also a Wilson appointee, found himself in that position many times in his 20 years on the court, the last 15 as chief justice, before retiring in 2011.
Besides joining Werdegar’s three-strikes decision, he wrote the 4-3 ruling in 2008 that struck down a voterapproved ban on samesex marriage as a violation of the rights of privacy and autonomy. Six months later the voters shelved that ruling by passing Proposition 8, a state constitutional amendment that was eventually overturned in federal court.
“I’m not against the initiative process,” said George, now a legal consultant and a member of Think Long for California, a bipartisan commission whose work includes legislation on the rules for state ballot measures. “I think Hiram Johnson (the governor who won passage of the rules for the initiative process in 1911) had some very noble aspirations seeking to basically empower the electorate in the face of special interests which controlled the Legislature.”
But a century later, George said in an interview, some of those same special interests “have managed to seize control of (the initiative process) and, in a way, perverted the whole function of it.”
“If you are willing to pay ... I think you can qualify anything for the ballot,” he said. Also, people collecting signatures for initiatives often “have no idea what the measure involves,” and campaign billboards carry messages like, “Vote for Prop. X, it’s good for you, or it’ll lower your taxes.”
In 2014, lawmakers approved proposals by Think Long for California that rewrote some of the procedures for the state’s initiative process for the first time in 40 years.
One change requires the Legislature to hold hearings on ballot-qualified initiatives at least 131 days before the election, allowing a measure’s sponsors and members of the public to frame the issues and address uncertainties.
The Legislature also must be notified when an initiative has collected 25% of the signatures it needs to make the ballot. At that point, lawmakers with qualms about the measure can try to negotiate changes or reach an agreement with the sponsors to drop the initiative and achieve the same goal by legislation, which — unlike voterapproved initiatives — could be amended in the future without going to the ballot.
That process was used to enact California’s current minimum-wage law, which Gov. Jerry Brown signed in 2016 after it was first proposed as an initiative.
George described the changes as “modest reforms” that didn’t address some of the deeper problems with the initiative system, like the role of big money. He said California also makes it “far too easy” to amend the state Constitution at the ballot box — a process that has taken place more than 500 times since 1911 — but increasing the required signatures or imposing other restrictions would probably require submitting another state constitutional amendment to the voters.
That would mean “asking people to reduce their own power in the initiative process,” George said.
Another recurring issue raised by critics of the process, as Werdegar observed in her Berkeley speech, is the use of initiatives for “empowering a majority to impose its will on a minority.”
That might be seen as part of democracy. But its application by initiative can lead to bitter and divisive campaigns over issues of race, gender or ethnicity, without some of the safeguards built into the legislative process. Prop. 8, the 2008 ban on same-sex marriage, was passed as a state constitutional amendment after George’s court overturned a 2000 initiative that also defined marriage as strictly between a man and a woman. Other examples include a 1994 measure, Prop. 187, which would have made public schools and government services off-limits to undocumented immigrants but was struck down in court; and Prop. 209 of 1996, a ban on race-based affirmative action that remains in effect.
“The majority-minority problem is something that really should be dealt with,” George said — although, again, it would probably require asking the voters to limit their own lawmaking authority. At the very least, he said, ballot measures that require more than a majority vote for future changes in the law, like initiatives mandating two-thirds approval for tax increases, should themselves require the same supermajority vote for passage.
The courts, in theory at least, have the last word on the scope of the voters’ power to enact laws by initiative or repeal them by referendum, as in the scheduled November 2020 vote on the bail system.
On rare occasions the state Supreme Court has declared a ballot measure unconstitutional, though such decisions may themselves be overridden by the voters, as George’s marriage ruling was in 2008. The same voters decide whether to keep the justices in office for 12-year terms.
The last word, as Werdegar told her Berkeley audience, is usually spoken quietly.
“Direct democracy through the initiative is here to stay,” she said. “The responsibility of the courts is to temper the will of the people — the fourth branch (of government) — when necessary to honor our fundamental constitutional principles, but only so much and no more.”