The November 2008 election and the California Constitution

This fall’s statewide ballot has four initiative constitutional amendments. Most notably, Proposition 8 would reverse the California Supreme Court’s ruling in In re Marriage Cases, available here, which found a right of same-sex couples to marry in the California Constitution. (Howard Rice represented the City and County of San Francisco in this case.) Proposition 4 would amend the California Constitution to require parental notification before a minor obtains an abortion; Proposition 9 is a “victim’s rights” criminal justice initiative; Proposition 11 would take redistricting out of the hands of the Legislature and give it to a newly-created commission.

In addition, one statutory initiative has already been subject to constitutional challenge. In July a petition for writ of mandate was filed by two former Governors (Gray Davis and Pete Wilson), joined by numerous district attorneys, seeking to remove Proposition 5 (a sentencing reform initiative) from the ballot. Among other things, the Petitioners claimed that provisions in the initiative creating a "Secretary of Rehabilitation and Parole" were unconstitutional, because the initiative gives the Secretary a fixed term. They also claimed that the initiative invalidly gave this new official too much power over the State's parole policy and over the Governor's appointments to the parole board. Finally, they assailed the provisions of the initiative that would require drug treatment for several classes of non-violent drug offenders, contending that these provisions unconstitutionally delegate judicial powers. The petition and the supporting memorandum are available here.

The proponent of the initiative filed a lengthy preliminary opposition (here), responding to all these claims. For example, he defended the fixed term authorized by the initiative by relying on numerous cases that have authorized legislative limits on the Governor's appointment power. He also made the additional argument that pre-election review of a statewide measure is improper where the petition (a) does not challenge the power of the electorate to adopt it and (b) challenges only a portion of the measure. In other words, if a measure is within the electorate's initiative power, it cannot be removed from the ballot unless all of its provisions are clearly invalid.

After Petitioners filed a reply memo (here), the Court summarily denied the petition. (Howard Rice represented the Real Party in Interest, Proposition 5's proponent.)