Subject: Re: Prop 77 back on ballot
From: Rick Hasen
Date: 8/12/2005, 11:41 PM
To: George Waters
CC: election-law@majordomo.lls.edu

Responding first to Jim Lacy---I don't think the*result* reached by the Supreme Court is "curious."  As I've said, I thought that there were reasonable arguments on both sides of this issue.  What troubles me is the specific nature of the order isued by the Court.  It would have been much better, from the point of view of the consistency and predictability of California law, for the Court simply to have ordered Prop. 77 to appear on the ballot, perhaps with a notation that the ballot substantially complied with the law.  That would have been cryptic, and unsatisfying for some, but it is better than what the Court actually did.

The Court appears to have announced, without full briefing and certainly without careful consideration, a very difficult to administer and apparently much laxer test than in the past for substantial compliance (likely to mislead voters).  Perhaps the Court did not intend this to be a new test with precedential value: if so, all the more reason they should have kept that sentence to themselves.

It is also not clear, as Fred Woocher's e-mail indicates, what the Court would be prepared to do on the substantial compliance issue should Prop. 77 pass. 

Both of these messes could have been avoided, while still putting Prop. 77 back on the ballot.

As for George's questions 2 and 4, the Chief Justice announced that he fills vacancies case by case alphabetically among all the appellate court Justices in California.  He recently completed the Zs and is starting over.  As far as I know, Aldrich is now on this case for its duration. I don't know the answers to questions 3 and 5.

George Waters wrote:
1.    Please count me in the category that would disagree with the California Supreme Court's order regardless of whether the initiative petition concerned redistricting or minimum wage.
 
2.    Does anyone know what criteria the Chief Justice uses to assign interim justices? Justice Aldrich, who cast one of the four vote to stay the superior court order, and thus to put Proposition 77 back on the ballot, was sitting by assignment. (The California Supreme Court presently has only six members because Janice Brown was appointed and confirmed to the DC Circuit.)
 
3.    Would it have been possible for the Chief Justice not to assign an interim justice?  And, if so, could the same order have issued on a 3-2 vote? (I assume the answer to both these questions is yes.)
 
4.    Will Justice Aldrich now take the seventh seat in all future decisions in this case (assuming no new Supreme Court Justice is appointed before further proceedings in this case)? Or can the Chief Justice appoint someone new the next time around?
 
5.    Has anyone gone over the petitions in support of Proposition 77 to see if all contain the same text that will now appear on the ballot?
 
George Waters
2600 Kadema Drive
Sacramento, CA 95864-6900
bokarie@sbcglobal.net
916/483-6367
916/483-7033 (fax)
----- Original Message -----
From: WewerLacy@aol.com
To: Rick.Hasen@lls.edu ; election-law@majordomo.lls.edu
Sent: Friday, August 12, 2005 8:11 PM
Subject: Re: Prop 77 back on ballot

I understand this is Rick's chain, but I respectfully don't see what is so "curious" about the order.  A key characteristic of the California Constitution that differentiates our state from many others is the right of the people to enact legislation through the initiative process.  It is an especially important function of our democratic system and an expansion of rights that deserves protection.  To protect the system, and in this case the rights of the million voters that signed petitions, a few picayune grammatical issues should not be able to derail the rights of all those many who want to vote on this matter.  The Supreme Court exists to resolve these issues and consistent with Assembly v. Deukmejian it did so, to protect the right to initiative.  Most of the challengers in this case, in my opinion, have been motivated more by power politics than consideration for the consequences of their actions to the right to petition.  If the facts were exactly the same but the initiative was about raising the minimum wage, most of the challengers to Prop. 77 would turn their legal arguments on a dime and would agree with what the Supreme Court did today.  Someday, these challengers may be glad for the Supreme Court's decision.

James V. Lacy
Wewer & Lacy, LLP

Visit our website at www.wewerlacy.com.


-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
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http://electionlawblog.org