Sanity Wins Its Day in High Court : Onerous provision in Prop. 115 overturned

The California Supreme Court’s decision to strike down the most burdensome portion of Proposition 115 is a welcome interjection of judicial sanity into an episode that heretofore has often been marked by fantasy and misrepresentation.

From the outset, the measure’s opponents, including The Times, have argued that many of its provisions were unconstitutional, particularly its abolition of judges’ ability to apply the California Constitution to questions involving the rights of criminal defendants. It was, in fact, that provision that the court unanimously overturned.

However, in its refusal to invalidate 115 as a whole, the court has provided the most striking example yet of the harm done not only by its narrow reading of the Constitution’s guarantees on individual liberties, but also by its collaboration in the crisis of governance created by abuse of the initiative process.

The opinion written by Chief Justice Malcolm M. Lucas and joined by five of his colleagues held that a section of Proposition 115 compelling state judges to defer to U.S. Supreme Court rulings on the rights of persons accused of crimes amounted to a prohibited “revision” of the state’s Constitution. That document specifies that while “electors may amend the Constitution by initiative,” a “revision” of the charter requires a constitutional convention with popular ratification or legislative submission of a proposal to the voters. The Constitution, however, is silent on the distinction between “amendment” and “revision.”

According to the court, this provision of 115 amounts to a “revision” because even though its “quantitative effect . . . does not seem so extensive . . . as to change directly the ‘substantial entirety’ of the Constitution . . . from a qualitative standpoint, the effect of (this portion of) Proposition 115 is devastating.”

One need not be a confirmed ironist to contrast the alacrity with which the court has responded to this challenge to its prerogatives with the indifference that so frequently marks its response to petitions concerning the rights of ordinary individuals, workers or persons accused of crimes. It is also fair to ask how the “qualitative” test of constitutional revision can be withheld from any review of Proposition 140 with its imposition of particularly onerous term limits on legislative office-holders.

More important are the objections raised by Justice Stanley Mosk in his concurring and dissenting opinion. He argues that 115 should have been struck down because it violates California’s constitutional requirement that “an initiative measure embracing more than one subject may not be submitted to the electors or have any effect.”

As Mosk correctly points out, the court’s refusal to admit that 115 violates that rule amounts to a finding “that ‘subject’ is nothing more than a label of indefinite scope, much like ‘government’ or ‘public welfare.’ ” The court’s refusal to put a rational construction on the single-issue provision has made it an accomplice to this state’s destructive abuse of the initiative process.