Courts Undermine State’s Initiative System

Jan. 20, 2012

I voted against Proposition 215, the so-called Compassionate Use Act, which legalized marijuana use here in the nation’s largest pot-growing state for — wink, wink, nod, nod — “medicinal purposes.”

That’s why it is rather ironic that I find myself compelled to come to the defense of the 1996 law, which the California Supreme Court’s seven justices this week unanimously agreed to review.

It’s not that I have changed my mind about Prop. 215 over the past 16 years.

I still believe it was a Trojan Horse sponsored by all-too-clever interests whose ultimate aim is to decriminalize use of not only cannabis, but also cocaine, heroin, crystal meth and every other currently illegal drug. I also remain troubled that the Compassionate Use Act brazenly contravenes longstanding federal drug law.

So why am I defending Prop. 215? Because it was approved by 56 percent of California voters. Because I think it a mockery of the democratic process when judges overturn the results of a public plebiscite.

The temptation for the 44 percent of us who voted against Prop. 215 is to applaud the state’s highest court for addressing itself to the continuing controversy the law precipitated.

To urge the justices to allow local governments throughout the state to ban marijuana dispensaries if they see fit. To strike down the Compassionate Use Act altogether on grounds that it violates federal law.

But the time for the courts to strike down Prop. 215 was back in 1996, before the measure actually made the state ballot. Not after the measure was approved by the voters. Not 16 years after the fact.

If the forthcoming court review of Prop. 215 was an aberration, perhaps it would not so offend my democratic (small d) sensibilities. But California judges and courts have been notorious over the years in nullifying the expressed will of the state’s electorate.

Other Initiatives

In 1994, Proposition 187 was approved by 59 percent of California voters. The Save our State initiative would have prohibited illegal aliens from receiving public education, health care and other taxpayer-funded entitlements.

However, it was declared unconstitutional by federal judge Mariana Pfaelzer, a liberal judicial activist appointed by President Jimmy Carter. When Gray Davis became governor, he decided not to appeal, effectively killing the law.

Proposition 209, the California Civil Rights Initiative, was approved by 54 percent of voters in 1996, the same year Prop. 215 won passage. It prohibited the state from considering race, sex or ethnicity in public employment, public contracting and public education.

It was initially stuck down as unconstitutional by federal judge Thelton Henderson, yet another liberal judicial activist appointed by Carter. However, a three-judge panel of the 9th U.S. Circuit Court of Appeals subsequently upheld the law.

Props. 22 and 8

In 2000, Proposition 22 was approved by an overwhelming 61 percent of California voters. The Knight Initiative, as it was known, specified that only marriages between a man and woman would be lawfully recognized in the Golden State. Eight years later, the California Supreme Court struck down Prop. 22 as unconstitutional.

The court’s action led, in turn, to Proposition 8, the California Marriage Protection Act. That 2008 constitutional amendment, which prohibited same-sex marriages, was approved by 52 percent of the electorate.

Prop. 8 was overturned in 2010 by federal judge Vaughn Walker, who retired not long after his ruling and announced that he was in a long term same-sex relationship. His ruling was stayed and the fate of the voter-approved law may ultimately be decided by the U.S. Supreme Court.

California’s initiative system, which worked just fine for much of the past 101 years, has in recent decades become a democratic bait-and-switch. The people of the state are supposed to have the power to enact law at the ballot box, but the reality is that judges and courts — all too often politically motivated — decide what voter-approved propositions may and may not become state law.

That’s why initiative system needs a fix. The suggestion here is a judicial tribunal that previews proposed propositions before they reach the ballot. Before millions of dollars are spent for and against the measure. And before — rather than after — the measure is approved by the state electorate.

Such judicial preview will not all together prevent the courthouse assault on direct democracy we’ve witnessed over the past couple decades. But it will raise the bar considerably for judges and courts that presume to thwart the will of the electorate.

— Joseph Perkins