Court Seems Troubled by Redistricting Initiative

Several members of the California Supreme Court appeared deeply troubled Wednesday by a proposed ballot initiative that would slash the pay of state legislators and take away their authority to draw election districts.

Meeting in Los Angeles for arguments, three of the seven justices, including Chief Justice Ronald M. George, indicated that they were inclined to find the proposed initiative, Proposition 24, unconstitutional because it deals with two subjects simultaneously, while others seemed on the fence. George is generally in the majority on court decisions.

The justices have until Monday, when the measure is due to go to state printers, to decide whether to remove it before voters cast their ballots in March, an action taken by the court only five times in its history.

The measure has two major parts: It would cut state legislators’ pay from $99,000 a year to $75,000 and would transfer reapportionment from the Democratic-controlled Legislature to the Republican-dominated California Supreme Court.

Congressional Republicans have largely financed the initiative because they believe that the Democrats will draw election district boundaries that hurt Republican candidates after the 2000 Census. Redistricting occurs every 10 years, and the majority party often crafts boundaries favorable to its side.

Although some justices seemed reluctant to deny voters the chance to consider the measure, others suggested that both sides could be spared a lot of time and money on a campaign if the proposition eventually would be declared unconstitutional anyway.

Justice Joyce L. Kennard, the only member who did not vote in favor of reviewing the measure during a closed meeting last month, stressed how “very, very rare” it is for the court even to consider preelection challenges. She complained that the justices have too little time to make an informed decision.

“We have to come up with an opinion by this coming Monday,” she said. “This is not the only case we have on calendar.”

She said she did not want to imply that she agreed with the measure, but added that she was “concerned about taking this away from the voters.”

At the request of the California Senate and Democratic leaders, the court will decide whether the initiative violates a state constitutional rule against two-subject ballot measures by combining the legislative pay cut with reapportionment.

Joseph Remcho, representing the Democrats, told the court that the rule is designed to prevent “voter deception and voter confusion” when one subject in a measure might be attractive, the other not. Without the rule, a voter must “hold his or her nose and vote for both,” he told the court.

The proponents, led by taxpayer activist Ted Costa, contend that the proposition deals with the common theme of preventing legislators from acting on matters in which they have a conflict of interest.

Chief Justice George repeatedly said he had trouble finding the “nexus” between the pay cut and reapportionment. Although legislators can draw election districts that benefit them, decisions on legislative pay are made by a governor-appointed commission. The commission was established by voters in 1990.

“Why is [legislative pay] a conflict on the part of the Legislature?” George asked, adding that it seemed “misleading” to suggest one.

Thomas W. Hiltachk, an attorney for the initiative’s proponents, said the salary commission has doubled lawmakers’ pay under pressure from state legislators.

But George said voters may have wanted to raise legislative pay when they created the salary commission. He noted that members of Congress make about $141,000 a year.

“If you prevent this measure from going on the ballot,” replied Hiltachk, “we will never know.”

Justice Marvin Baxter said he was troubled that initiative sponsors elicit signatures to qualify measures by adding “‘sweeteners.” The pay cut for legislators was added to make the reapportionment transfer more attractive, opponents contend.

Justice Stanley Mosk noted that the rule against two-subject initiatives benefits voters by ensuring that they know what they are approving.

But Kennard said the court can only remove the initiative if there is no doubt that it is unconstitutional. Thomas S. Knox, an attorney for Secretary of State Bill Jones, said it was not clear, but granted: “This is a very close call.”

Justice Kathryn Mickle Werdegar appeared torn. The court, she said, has a responsibility to find a common link between the two subjects--redistricting and legislative pay--”if we can.”

Outside the courtroom, lawyers for the initiative predicted that the vote would be close.

Costa said he was prepared to launch a new initiative should the court reject Proposition 24.

As head of the California judiciary, George has been lobbying the Legislature for a pay increase for judges. Costa said the Democrats who support George’s efforts to increase judicial pay oppose the proposed initiative.

“I don’t believe [the court] has a conflict, but I do believe there is an appearance of impropriety,” Costa said.

Though the measure would transfer new apportionment authority to the court, the justices have no legal conflict because the court has the ultimate responsibility for deciding questions about the state Constitution, lawyers on both sides agree.