Lawsuits become integral to state's initiative process

by Nancy McCarthy
Staff Writer

... Continued from frontpage

Ward Connerly, the measure's author, said it was "time for another Boston tea party," and Rep. Sonny Bono introduced a bill to make it more difficult for federal courts to block state initiatives.

As enraged as voters and politicians may be over legal challenges to initiatives, lawsuits have become integral to both the process and the political strategy. Of nine successful initiatives on the ballot in 1994 and 1996, for instance, six have been challenged in court.

And despite charges that judges are "thumbing their noses" at the electorate, many observers believe judges have a responsibility to decide the legality of the measures.

"I don't think judges are thumbing their nose at voters," says Daniel Lowenstein, a professor of election law at UCLA Law School. "We live under a system of law, and we have to obey the courts' decisions. We also live in a democracy, and I don't think people have to agree with the courts' decisions."

"It's very important that the public has the right to vote on public policy matters, but the public has to be constrained by the Constitution and that's the court's job," agrees Jim Shultz, executive director of the Democracy Center, a non-profit advocacy institute.

"This is nothing new, but now it's standard operating procedure to go to court."

The initiative in California has been around since 1912, when six measures, including one to abolish the death penalty, were defeated by voters. In the 1950s, '60s and early '70s, when a strong, activist legislature was in its heyday, the initiative was little used, other than as a device to force elected officials to act.

"Until 1978, the initiative process was a dramatic sideshow of state politics, but the center was the legislative arena," says Shultz. "Proposition 13 changed all that."

Prop 13 upheld

In 1978, the California Supreme Court upheld the controversial property tax relief measure, ruling, "It is our solemn duty to 'jealously guard' the initiative process, it being 'one of the precious rights of our democratic process.'"

That hasn't stopped interest groups from challenging successful initiatives since then. And the challenges are not restricted to such emotional issues as illegal immigration, affirmative action and crime, but include the drier questions of term limits, auto insurance and campaign reform.

Between 1964 and 1992, roughly 40 percent of 35 successful initiatives have been challenged in court. Six were completely invalidated by the courts and eight were partially invalidated.

In the four primary and general elections in 1994 and 1996, nine more measures were approved by the voters, of which six have been challenged in court.

Step in the political process

"Nowadays," says Craig Holman, project director for the Center for Governmental Studies in Los Angeles and a student of the initiative process, "it's like it's another step in the initiative campaign. Groups will wage political warfare with any means. If they can't persuade voters, they use a portion of their budget to persuade judges."

And when judges' rulings displease public officials or key interest groups, they routinely attack the court. When Prop 14, the 1964 fair housing initiative, was struck down as unconstitutional, the measure's supporters cried judicial interference. The reaction was the same years later, when the court repealed the death penalty, undid Prop 187 and weakened three strikes.

Over the years, the role of the initiative has changed. Both Shultz and Holman agree that law-making by initiative, while it may not be a healthy way to govern, is imperative when elected officials will not or cannot deal with hard issues and make public policy. A measure often will be placed on the ballot only after years of inaction in Sacramento.

'96 beats the '60s

As an illustration of the direct relationship between the number of initiatives and the legislature's ability to deal with real policy decisions, Shultz notes that there were more initiatives on the ballot in November 1996 than in all the 1960s.

The natures of legislation and voter initiative are polar opposites. Legislation is the product of compromise and negotiation, while the initiative, usually the product of voter outrage, tends to be uncompromising.

In addition, says Shultz, the initiative has become a political device to support a candidate's campaign. "Part of what's going on is that there is a flurry of initiatives that are about campaign slogans, not public policy," he said. Both Props 184 (three strikes) and 187 (illegal immigration) were "examples of very extreme measures written to be more slogans than to be good law," Shultz added.

Brown sets pace

He said this trend began with Gov. Edmund G. "Jerry" Brown, who championed Prop 9, a successful campaign reform measure, while running for governor in 1974. Gov. George Deukmejian was closely aligned with death penalty measures, and former Attorney General John Van De Kamp supported three unsuccessful initiatives in 1990. He lost.

"Wilson has perfected the formula," Shultz said, contending that without Republican help, both the three strikes and illegal immigration measures of 1994 would have failed. "They did that deliberately to create an issue that would benefit them in the election," he said. "They did the same thing with affirmative action."

An opinion referendum

The initiative process has thus become an opinion referendum, he says. "When you have that dynamic of politicians using the initiative not to make law but to reframe the election to their advantage, it's not a surprise that we end up with statutes that are wildly challengeable in court."

Holman, who wrote Prop 208, the successful campaign reform measure approved in November, agrees that political strategy plays a crucial role in the initiative process. Although he tried to write a law which he believes is both tough and constitutional, he said he expected opponents to take the measure to court. Indeed, one group has sued and either the Republicans or Democrats or both may sue as well.

"I do see the reason the court has to be able to evaluate its constitutionality," Holman said, "but it distresses me that's it's gone over that line into political strategy."

Seven initiatives were successful in 1996. Four are in court: in addition to suits against Props 208 and 209, challenges have been filed against Prop 198, the open primary measure approved last March, and Prop 213, an insurance measure passed in November.

The Supreme Court has issued three decisions on Prop 184, the 1994 three strikes initiative, while Prop 187, the second successful initiative that year, languishes in federal court in Los Angeles.

Happy lawyers

Although the public and politicians may be unhappy with such challenges, at least some lawyers are happy.

"It's given a group of election attorneys access to the same lucrative deep pockets that campaign consultants have always been able to tap into," Shultz observes. "It's very expensive for the public."