NEWS ANALYSIS : Court Role in Initiatives Is Reasonable

TIMES LEGAL AFFAIRS WRITER

Where does this federal judge get off, overturning Proposition 73?

This is a democracy, isn't it? The people of the state of California spoke. They passed a campaign-spending-limit initiative. They never voted for this judge, or for any other appointed federal judge.

While these kinds of tough sentiments may seem like appealing counterweights to judicial audacity, they actually run counter to the way American government works.

U.S. District Judge Lawrence K. Karlton and his action are in the mainstream, expressing a guiding sentiment of American law: Courts exist to preserve minority rights and political equity and therefore do not necessarily have to listen when a majority of the people speak.

Most of the time, in fact, the courts don't.

Experts say 50% to 60% of the initiatives passed by California voters in the last 30 years, ranging from an attempt to oppose open housing to a rollback in auto insurance rates, have been nullified or substantially altered by the courts.

As former U.S. Supreme Court Chief Justice Warren Burger put it in an opinion overturning a Berkeley rent-control ordinance nine years ago, "It is irrelevant that voters rather than a legislative body enacted (this law) because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation."

Burger was merely claiming an extension of the territory originally staked out by a predecessor, Chief Justice John Marshall, in 1803, when he took for the courts a role not explicitly granted to them in the Constitution: the right to curb congressional excesses by declaring laws passed by Congress to be unconstitutional, and thus invalid.

Just as the courts have not hesitated to overturn congressional actions--for example, the recent prohibition against flag burning that was overturned as a violation of the constitutional right to free speech--courts have even more frequently changed initiatives.

In the case of Proposition 73, Karlton concluded that it unconstitutionally discriminated against political challengers whom it would leave at a disadvantage when they ran against incumbents.

The disadvantage sprang from the initiative's limit on contributions. It said donors could give no more than $1,000 per year, rather than per election.

Karlton reasoned that an incumbent would be more likely to plan ahead for his next race. For example, an incumbent, knowing he would run again, could easily solicit a wealthy individual for four $1,000 donations over a four-year period--a $4,000 total. By contrast, an outsider who decided to challenge the incumbent would be less likely to plan ahead. He might decide to run in the same year as the election and be able to raise only $1,000. If, however, the limit were per election, as it is in federal and other state spending-limit laws, both incumbent and challenger would be on equal terms.

UCLA law professor Daniel Lowenstein, an expert on initiatives and author of the 1974 state Political Reform Act, which was also modified by the courts, said Karlton was apparently following guidance the U.S. Supreme Court laid down in 1938. The court declared then that judges should not only intervene when minorities' rights are threatened, but also when enforcement of new laws threatens the political process.

While the traditional view of the legal community is that courts should treat initiatives like any other legislation, some lawyers believe that courts should give initiatives more deference since they are direct expressions of popular will. Others argue that, precisely for that reason, courts should be even more willing to intervene.

That is because the checks and balances against majority tyranny that are built into the legislative process--with requirements that laws be approved by two houses and an executive--are absent from the initiative process. The courts form the only check on an initiative's excess.

UCLA law professor Julian Eule made that argument recently. He believes that the judiciary should take a harder look at initiatives, such as so-called "English-only" measures, than it does at ordinary legislation "to make sure that the majority governs in the interests of the whole people."

Eule and other critics of initiatives note that the nation's founders set up the government as a republic rather than as a democracy.

The founders were afraid of democracy, Eule said, perhaps in part because as property owners in the minority they were concerned that a majority with too much power would use it to redistribute wealth.

Besides, Eule and others point out, initiatives may not be good indications of popular will.

They note that few people vote to begin with, that even fewer vote on initiatives than on candidates. Still fewer voters probably take the time to study long-winded initiatives and overcome confusing media blitzes by figuring out for themselves what they are voting on. Eule experienced this problem several years ago after he moved to California from an Eastern state--one of 24 that do not make use of the process.

"Sometime in mid-October," he said, "a massive booklet arrived in my mailbox. At first I thought it was the local phone directory. Closer examination revealed it to be a 'ballot pamphlet' from California's secretary of state."

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