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PERSPECTIVE ON PROPOSITION 165 : Is What You See What You'll Get? : Initiatives that need 'fixing' by the state court shouldn't be on the ballot. This one could be 'fixed' to do great harm.

October 26, 1992|GERALD F. UELMEN | Gerald F. Uelmen is dean of the Santa Clara University School of Law. and

The exposure of a major flaw in Proposition 165, the governor's "welfare reform" initiative, evoked a confident and predictable response from Gov. Pete Wilson. He announced that his public campaign statements will let the courts know that it was an "unintended error," and the mistake will be corrected, if necessary, by the courts. If the track record of the California Supreme Court in cleaning up the garbled verbiage and verbal garbage of initiative measures is any indication, the governor's arrogance is fully justified.

Ironically, the same justices who deride "judicial activism" are often the most eager to play the role of legislative drafters to uphold a popular initiative. But this lack of judicial backbone has ushered in a sad era in which all major questions of public policy are determined by initiatives of uncertain meaning, rendering the state ungovernable.

In case after case, stretching back to the Bird Court and beyond, the Supreme Court has consistently turned to jelly when confronted with initiative measures. The constitutional requirement that an initiative be limited to a single subject has been interpreted so broadly that it more closely resembles an amusement park with its multiple themes. The court eagerly rewrites the sloppy drivel that would render an initiative measure unconstitutional if the words were given their plain meaning.

In the case of Proposition 13, tax reform was salvaged when the court adroitly sidestepped the ambiguities for resolution in "future cases." The "future cases" are still coming down 14 years later, and they're hardly consistent. In the case of Proposition 8, the 1982 "victims' rights" initiative, a new test of criminal insanity was rescued by the court's interpretation of the word and to really mean or . In the case of Proposition 103, the popular insurance rollback initiative, the court corrected its unconstitutional vagueness by inventing a rate rollback hearing process that was nowhere to be found in the language of the initiative. Most recently, to uphold Proposition 115's broad provision allowing police officers to present hearsay evidence in preliminary hearings, the court drafted its own limitation to permit such testimony only if the officer can "meaningfully assist a magistrate in assessing reliability" of the hearsay.

Unlike the legislative process, where public hearings expose proposals to close scrutiny and frequent amendment, initiative measures are drafted in secrecy by the special interests that have most to gain from their enactment. Once signatures have been collected, the language cannot be amended or changed. If they muck up the job, the court should not hesitate to throw the measure out, and say "Come back when you get it right." As long as the court remains willing to ride to the rescue by redrafting initiatives, it can expect to see more of the same, with careless politicians saying "read my lips" if you want to figure out the meaning of a constitutional amendment.

The flaw in the drafting of Proposition 165 is more than a technical gaffe. The measure grants the governor power to make unilateral spending cuts in the budget unless an alternative plan is passed by the Legislature and "signed by the governor." The signature requirement would eliminate the power of the Legislature to override a veto, giving the governor unchecked power over spending. If the language were given its plain meaning, the state Supreme Court would have little choice but to find the measure a revision of the Constitution, which grants the Legislature veto override power. As recently as 1990, the court held that a fundamental change in its own power could not be accomplished by initiative. A revision of the Constitution requires either a constitutional convention or approval by two-thirds of each house before it is submitted to the voters.

While courts occasionally refer to legislative debates to resolve the meaning of ambiguous clauses in legislative enactments, the flaw in Proposition 165 does not arise from ambiguity. The language couldn't be clearer. The mistake was simply in putting the words there in the first place. For a court to turn to campaign rhetoric and give political speeches more weight than the words approved by the voters would be an unprecedented extension of prior decisions. While politicians are free to announce that planks in the party platform were put there by mistake, this is a constitution we are amending. If Gov. Wilson is confused by the difference between party platforms and the state Constitution, he should return to law school.

Unfortunately, some of the current justices of the state Supreme Court might be receptive to the governor's invitation to redraft Proposition 165. The governor stood up for the court when the Legislature sought savage reductions in its budget. Whatever political future Wilson can salvage is riding on the success of this initiative, and he risked lots of political chips to create a favorable climate for its enactment. The risks for the court, however, are also considerable. Judicial subservience to the governor's political agenda could plunge public confidence in the independence and integrity of the judiciary to a new low.

The people of California also have a lot riding on this question. If the determination of public policy is ever going to be restored to the realm of rational political discourse and compromise, the legal limits on the power of the initiative must be given some meaning. Ultimately, that's an issue that transcends welfare reform or gubernatorial power over the budget.

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