http://electionlawblog.org/archives/003767.html
Prop. 80 Back on Ballot in California
The California Supreme Court issued an order today (see here,
scroll down to last entry) restoring Prop. 80 to the ballot. The order
reads:
Petition for review GRANTED. The stay issued by the Court of Appeal as
part of its July 22, 2005, decision, restraining the Secretary of State
from taking any steps, pending the finality of the Court of Appeal's
decision, to place Proposition 80 in the ballot pamphlet or on the
ballot of the special election to be held on November 8, 2005, is
vacated. As the Court of Appeal recognized, California authorities
establish that "it is usually more appropriate to review constitutional
and other challenges to ballot propositions or initiative measures
after an election rather than to disrupt the electoral process by
preventing the exercise of the people's franchise, in the absence of
some clear showing of invalidity." (Brosnahan v. Eu (1982) 31 Cal.3d 1,
4.) Because, unlike the Court of Appeal, at this point we cannot say
that it is clear that article XII, section 5, of the California
Constitution precludes the enactment of Proposition 80 as an initiative
measure, we conclude that the validity of Proposition 80 need not and
should not be determined prior to the November 8, 2005 election.
Accordingly, the Secretary of State and other public officials are
directed to proceed with all the required steps to place Proposition 80
in the ballot pamphlet and on the ballot of the special election to be
held on November 8, 2005. After that election, we shall determine
whether to retain jurisdiction in this matter and resolve the issues
raised in the petition. Votes: George, C.J., Kennard, Baxter, Werdegar,
Chin, and Moreno, JJ."
This is very interesting, and contrasts nicely with the California
Supreme Court's decision a few years ago in Senate v. Jones,
988 P.2d 1089 (Cal. 1999) to engage in pre-election review a few years
ago to remove an initiative measure (on single subject grounds) that
would have changed redistricting rules and the rules related to setting
legislators' salaries. In that case, Justice Kennard in dissent raised
the same points raised by the Court's order here.
What does this mean for review of the Prop. 77 litigation? Nothing
directly. That case remains
before the Third Appellate District. I have predicted
(perhaps rashly) that there's an 80% chance the trial judge's ruling
keeping Prop. 77 off the ballot will be affirmed. Part of that was
based on my belief that in the summer the California Supreme Court
seems pretty reluctant to get involved in these cases. So it may be
that the California Supreme Court is more likely to eventually take a
closer look at the merits of the Prop. 77 appeal than I had thought.
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
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