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Judge denounces Calif. penchant for referendums

Voters have too much sway over laws, justice says

By Jennifer Steinhauer
New York Times / October 11, 2009

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LOS ANGELES - In a rare public rebuke of state government and policies delivered by a sitting judge, the chief justice of the California Supreme Court scathingly criticized California’s reliance on the referendum process, arguing that it had “rendered our state government dysfunctional.’’

In remarks prepared for delivery yesterday before the American Academy of Arts and Sciences in Cambridge, Mass., the chief justice, Ronald M. George, denounced the widespread use of the referendum process to change state laws and constitutions. And he derided California as out of control, with voters deciding on everything from how parts of the state budget are spent to how farm animals are managed.

The state is unusual, he said, because it prohibits its Legislature from amending or repealing many types of laws without voter approval, essentially hamstringing that body - and the executive branch.

George’s remarks come at a time of severe budget crisis in California stemming from a variety of factors, including mandates from ballot initiatives. Several groups on the left and the right are clamoring for changes to the state’s constitution, including reining in of the direct democracy that has defined much of how the state operates.

This week, hundreds of people will convene in Sacramento for a conference on constitutional reform. A spokesman for Governor Arnold Schwarzenegger declined to comment on the justice’s speech.

George wrote that perhaps the “most consequential’’ effect of the referendum process was that it limited “how elected officials may raise and spend revenue.’’ He added, “California’s lawmakers, and the state itself, have been placed in a fiscal straitjacket by a steep two-thirds-vote requirement - imposed at the ballot box - for raising taxes.’’

He added: “Much of this constitutional and statutory structure has been brought about not by legislative fact-gathering and deliberation, but rather by the approval of voter initiative measures, often funded by special interests. These interests are allowed under the law to pay a bounty to signature-gatherers for each signer.’’

“Frequent amendments - coupled with the implicit threat of more in the future - have rendered our state government dysfunctional, at least in times of severe economic decline,’’ George said.

Beyond budget matters, George, a Republican appointed by Governor Pete Wilson in 1991, was critical of a 2008 voter initiative that ended same-sex marriage in California.

In May 2008 the Supreme Court struck down the state’s statutes limiting marriage to opposite-sex couples, with an opinion written by George citing a 1948 decision that reversed the state’s interracial-marriage ban. But in the November elections that year, a ballot measure known as Proposition 8 amended the constitution to override the court.

Citing a successful ballot initiative that same Election Day that regulated the confinement of fowl in coops, George said, “Chickens gained valuable rights in California on the same day that gay men and lesbians lost them.’’

He added, “The court over which I preside frequently is called upon to resolve legal challenges to voter initiatives. Needless to say, we incur the displeasure of the voting public when, in the course of performing our constitutional duties as judges, we are compelled to invalidate such a measure.’’

He fell short of being prescriptive, and spoke warily of a constitutional convention. But he said, “At a minimum, in order to avoid such a loss, Californians may need to consider some fundamental reform of the voter initiative process.’’