Could Prop. 49 be Prop. 140 redux?

When we reported that the Supreme Court would be addressing separation of powers issues on Monday, we weren’t expecting a doubleheader.  But in addition to filing its opinion in Steen v. Appellate Division, which concerned whether a court clerk rather than a prosecutor could issue a certain type of misdemeanor complaint, the court late yesterday struck Prop. 49 from this November’s ballot.

Prop. 49 — which would have asked the voters to give their nonbinding, advisory opinion whether the United States Constitution should be amended to overturn the United States Supreme Court’s Citizens United opinion — had been placed on the ballot not by citizens’ initiative but by the Legislature.  The court has not yet ruled that the Legislature exceeded its (state) constitutional authority by doing so — an opinion will come months later and yesterday’s order said only that the proposition’s validity is “uncertain” and it held out the prospect of the measure being “placed on a future ballot at the Legislature’s direction if the court ultimately determines it is valid.”  But the detailed discussion of the merits in Justice Liu’s concurring statement makes it quite unlikely he will “ultimately determine [Prop. 49] is valid” and it’s a good guess that his views are shared by some, if not all, of the other four justices who voted to take the measure off this year’s ballot.

Whether the court ultimately holds Prop. 49 is valid, yesterday’s order at the least questions the Legislature’s authority.  Also, the Legislature wanted the measure on the ballot this November, not years from now.  So, the Legislature cannot be happy about the court’s action.  And, in fact, the proposition’s author, State Senator Ted Lieu, called it “a bizarre order,” and said, “There is nothing in the California Constitution that prevents this Legislature from putting an advisory measure on the ballot.  This, in essence, silences voters in November.”

Which raises the question of how the Supreme Court’s order will affect inter-branch relations and brings to mind the court’s action almost a quarter century ago on another ballot measure, Proposition 140.  That measure was definitely not placed on the ballot by the Legislature.  Instead, it was a citizens’ initiative that imposed term limits on legislators and cut the Legislature’s budget.  After its approval by 52 percent of the vote in 1990, the Legislature challenged its validity.  But the Supreme Court mostly upheld the measure (Legislature v. Eu (1991) 54 Cal.3d 492), which greatly displeased the Legislature.

Former Chief Justice Ronald George, who had just joined the court as an associate justice at the time of the Prop. 140 case, recounts in his memoir how the court’s ruling soured relations between the legislative and judicial branches.  George says that the court’s decision — especially the inclusion in the opinion of some inflammatory language — caused “damage that persisted for years.”  According to George, “legislators view many court decisions . . . through a political prism” and “their immediate reaction . . . was to view the [Prop. 140] decision as something that would merit retribution on their part, or, as they put it more succinctly, ‘payback.’ ”  He also recounts a legislative leader saying to then-Chief Justice Malcolm Lucas, ” ‘After what you guys just did to us, we would look like a bunch of wimps if we didn’t do anything to you.’ ”

The court’s upholding Prop. 140 seems a much more serious and direct attack on the legislative branch than yesterday’s order striking Prop. 49, or, at least, you would think it would be viewed that way by legislators.  Nonetheless, the Prop. 140 history cannot be comforting to the current Chief Justice, who, as head of the state judicial branch, has been dealing with the Legislature, formally and informally, in trying to restore devastating budget cuts that are impairing the functions of California’s courts.  Because of her unique role, Chief Justice Cantil-Sakauye might be viewing the Prop. 49 case through a somewhat different “prism” than the associate justices, which might partially account for her lone dissent from the order pulling Prop. 49 off the ballot.  In that dissent, she criticizes the majority for “resolv[ing] doubt against the Legislature’s action instead of in favor of it.”

George relates in his memoir that, as Chief Justice, he often assigned to himself the writing of the court’s opinion “in cases that involved disputes between two or three branches of government” to make sure the tone of the opinion — even if not the bottom-line holding — was less than incendiary.  “I had to devote so much time and effort to establishing good working relationships with the other two branches,” George says, that “I certainly didn’t want one ill-chosen adjective or adverb to torpedo all of our good efforts.”  It would not be surprising if the final opinion on Prop. 49 is written by Cantil-Sakauye, finds the measure to be beyond the Legislature’s authority, but is phrased in diplomatic and conciliatory terms.