CBJ - November 2009 #04. Chief justice: Initiative process has led to dysfunctional state.


California Bar Journal


CBJ - November 2009 #04.

Chief justice: Initiative process has led to dysfunctional state

California Bar JournalNovember 2009Chief justice: Initiative process has led to dysfunctional stateIn unusually blunt remarks, Chief Justice Ronald George warned last month that the widely used initiative process that allows California voters to easily amend the Constitution has resulted in a dysfunctional state government.

Speaking at his induction into the American Academy of Arts & Sciences in Cambridge, Mass., George called use of the initiative process "extreme," and said it imposes constraints on elected officials akin to being "placed in a fiscal straitjacket." As a result of mandates - imposed by voters - requiring two-thirds of the legislature to approve tax increases, California's tax structure has given rise to a "boom or bust" economic cycle, he said. This year, when the state faces an unprecedented economic crisis, those restrictions resulted in cuts to programs that provide food to poor children and health care to the elderly disabled, as well as court closures one day a month.

In addition, the initiative process places a burden on the justice system, which is called on to resolve legal challenges prior to elections as well as years of litigation in cases where a measure's intent is unclear. While performing their duties as judges, George said, courts often incur the wrath of voters if they invalidate an initiative in whole or in part.

"One thing is fairly certain, however," he said. "If a proposal, whatever its nature, is sufficiently funded by its backers, it most likely will obtain the requisite number of signatures to qualify for the ballot, and - if it does qualify - there is a good chance the measure will pass. The converse certainly is true - poorly funded efforts, without sufficient backing to mount an expensive television campaign - are highly unlikely to succeed, whatever their merit.

In 2008, George wrote the historic decision ending a ban on same-sex marriage. But just a year later, the Supreme Court was called upon to decide the challenge to Proposition 8, the initiative approved by voters to prohibit...

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