Professor Gilbert's analysis is somewhat similar to what I put forth in my 1983 article on the California single-subject rule, 30 UCLA Law Review 936. The courts' efforts to decide on logical grounds what constitutes a single subject is futile and has often been disingenuous. This is the first I have heard of his and Cooter's paper, which I have not yet read. But based on his summary, I believe the effort to scrutinize the "processes" that give rise to an initiative will be equally futile and lead to equally disingenuous conduct on the part of the courts. Furthermore, the constitutional text, referring to a single subject, has nothing to do with "processes." I agree with them that the question has to be considered politically, but I believe it is the content of the initiative, not the "processes," that should be considered politically. That is, if the contents of the initiative are regarded as more or less unified by some significant part of the public, then t!
he rule is satisfied, otherwise not.
That may seem vague, but it assumes a very permissive application of the rule. Applied that way, the test works fairly well. The California courts more or less followed this approach until 2000 and did so pretty well, getting only one case wrong (and that was by an intermediate court). That is why I am not quite ready to join Rick Hasen in calling for repeal of the rule (though he suggested it as a possibility and did not really call for repeal). However, repeal would be greatly preferable to the rule as aggressively applied by many state courts since the late 1990s.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: owner-legislation@majordomo.lls.edu on behalf of Rick Hasen
Sent: Thu 6/15/2006 6:37 AM
To: legislation@majordomo.lls.edu
Subject: Legislation news 6/16/06
More on the Single Subject Rule
Michael Gilbert emails:
I have some thoughts on your suggestion that states should simply eliminate the single subject rule.
Yes, judges can manipulate the single subject rule to achieve whatever substantive outcomes they desire. But I don't think that‰EUR(tm)s cause for eliminating it. The rule serves important purposes, especially in the initiative context. The problem is that those purposes--preventing logrolling, preventing riders, maximizing transparency--are explicitly political, but judges don‰EUR(tm)t treat them that way. Judges view the rule through the lens of legal logic. If an initiative embraces a single, logical subject, they presume that the aforementioned political problems are not present. But that's simply not true. As you said in your post, logrolling and riding can take place within an initiative that embraces one logical subject--e.g., a combination of environmental measures. And logrolling and riding may be entirely absent from an initiative that is deemed to embrace multiple logical subjects--e.g., the CO case.
If courts want to get this rule right, they have to move away from their nebulous, logical tests and think explicitly in political terms. I understand there's hesitancy over this. Courts in this country are comfortable examining the substance of laws but not the political processes that gave rise to them. But that's exactly what the rule requires them to do. And there are ways to do it that would both limit judicial discretion and help the rule to achieve its purposes more effectively. I'm working on a paper (with Bob Cooter) that examines the purposes of the rule in the initiative context and develops a new judicial test for compliance. I'm attaching (with some hesitation, as it's still in draft form) a link to the paper if you or anyone else is interested.
http://law.bepress.com/cgi/viewcontent.cgi?article=1849&context=alea