State High Court to Rule on Initiative Before Election

In a rare move, the California Supreme Court will hear arguments today on the constitutionality of a state voter initiative--this one about redistricting--before it even appears on the ballot.

Acting on a suit filed by state Democratic leaders, the court has agreed to decide whether to remove from the March 7 primary election ballot an initiative that would require the Republican-dominated state high court, instead of the Democratic-controlled Legislature, to decide the boundaries of election districts for state and congressional candidates.

To make the measure more enticing to voters, sponsors included a provision that would slash state legislators’ pay from about $99,000 to $75,000 a year.

“If you want to have a legislative pay cut, you have to vote for redistricting,” complained Joseph Remcho, a San Francisco lawyer who is representing Democrats against the measure.

The initiative, Proposition 24, will go to the printer on Monday unless the court blocks it. The decision to review the case, made in a closed meeting in November, was a setback for the proponents.

The court usually rejects such preelection challenges, preferring to wait until a measure passes. The court has removed ballot measures only five times in its history, the last time in 1984 when it yanked a balanced budget measure.

But state and federal courts frequently overturn ballot measures after they have passed--actions that have caused considerable controversy in recent years. Most recently, the state Supreme Court held that Proposition 5, the Indian gaming initiative overwhelmingly approved by voters, violated the state Constitution.

In the current case, the justices must decide whether the proposition violates the state Constitution by dealing with more than one subject--redistricting and legislative pay--and whether it amounts to a wholesale revision of the state Constitution, rather than a simple amendment.

The justices might seem to have a conflict of interest in ruling on the initiative because it would directly affect them. But lawyers involved in the case--and a spokesperson for the justices--say the court can still rule on the initiative’s constitutionality.

“It is an institutional conflict, rather than a personal conflict, if any,” said Charles Bell, one of the lawyers for the supporters of the initiative. “Under the Constitution, [the justices] are the ones who are required to interpret the Constitution and the laws of the state.”

Redistricting will occur after the 2000 Census and could change both the makeup of the state Legislature and Congress. Republicans fear that the Democratic majority and governor in Sacramento will try to shut out Republican candidates by carving districts hostile to their party.

Although some state Republican legislators have grumbled about the proposed pay cut, Republican members of Congress have largely bankrolled the measure, and the state Republican Party and the National Republican Committee have endorsed it.

State legislators tend to draw districts “to feather their personal and political nests,” said Thomas Hiltachk, a lawyer for Republican tax activist Ted Costa, the sponsor of the measure. In some cases, districts have been drawn circularly with a finger jutting out solely to include an incumbent’s home, Hiltachk complained.

Six of the seven justices voted to review the measure. Because of the printing schedule, the court will have had only about a month to consider the measure. Most cases are before the court for a year before a ruling is handed down.

The California Supreme Court has traditionally interpreted the rule against two-issue ballot measures loosely, deciding to uphold measures if their subjects embraced a common theme. A ruling against Proposition 24 on the grounds it contains more than one subject would be a departure for the court.

Although previous redistricting initiatives have failed, the legislative pay cut in this one could propel it to victory, Remcho said. In addition to cutting legislators’ salaries, the measure would reduce their tax-free daily expense allowances from $121 to $75. Members of Congress would not be affected.

If the measure makes the ballot and is approved, the state Supreme Court will be required to appoint a panel of retired judges to hold hearings and establish new districts. After adopting the map, the court would submit it to voters.

Costa, executive director of a taxpayer group founded by the late Paul Gann, said he is not concerned about the politicization of the high court. Justices are already influenced by politics, he said, because governors chose those friendly to their party’s interests.

Noting that the justices’ names appear on the ballot every 12 years for confirmation, Costa added: “They already have to take into consideration public opinion. Everybody does who is in public life, and the courts can’t escape from that.”

However, he said, the court would be significantly more objective than the Legislature.

The California Supreme Court appointed retired judges to draw the election districts in 1990 because of a deadlock between the Democratic Legislature and former Republican Gov. Pete Wilson.

“I know of no one who said it was bad redistricting. . . ,” Costa said. “You had a Republican landslide in ’94 and a Democratic landslide in ’98. It means you have some pretty fair districts.”

Named as plaintiffs in the case against Proposition 24 are Senate President Pro Tem John Burton and Supt. of Public Instruction Delaine Eastin.

Remcho, their lawyer, said they are paying for the legal challenge with personal funds, possibly campaign contributions, and are not using taxpayer dollars.

Remcho said the plaintiffs believe the Legislature remains best equipped to decide election districts.

“Anybody who thinks that you are going to get an unfair gerrymander out of this Legislature and this governor this time around certainly doesn’t understand the current makeup of the Legislature and the current governor,” Remcho said.

The case is called The Senate of the State of California vs. Bill Jones SO83194.