Who Represents Voters at the Mediation Table?

Gov. Gray Davis’ solution to his political conundrum of whether to appeal a lower court’s thumbs-down ruling on a ballot proposition that he and many of his supporters opposed, was to move the measure off to a court mediator.

Now Davis has publicly declared that he will negotiate away a controversial portion of Proposition 187, the anti-illegal immigration measure that would deny public education to illegal immigrants.

In turning to mediation, Davis establishes a precedent that puts California’s initiative process at great risk. Mediation goes beyond whether Proposition 187 is right or wrong, constitutional or unconstitutional.

Nearly all initiatives find themselves in court challenges sooner or later. Using the avenue of mediation, Davis may have found a tool to modify popular initiatives. Since the government is the defender of any state voter-approved measure, the chance to mediate could have certain officials licking their chops.

Consider how past initiatives might have been handled in mediation with government taking the purported role of defender of the initiative against any constitutional challenge.

Sure, the people want to limit the terms of elected officials with Proposition 140, but six years for an Assembly member and eight years for a senator is a bit short. We’ll keep term limits as the voters wish but “settle on” eight years for Assembly, 12 years for the Senate.

Yes, we understand the people want the right to vote on taxes. But this two-thirds majority mark is too steep. A simple majority vote will meet voter wishes and avoid “constitutional” questions. And, undoubtedly, the voters wanted to protect the schools with Proposition 98, but they surely didn’t mean for local governments to have property taxes shifted to schools. Let’s alter that practice.

Each of these suggested modifications to initiatives passed by the voters may represent reasonable public policy arguments. However, none of these changes are what the voters approved.

Who knows how far mediators can go in changing initiatives as the two sides in the mediation work out their differences? Mediation on initiatives is new and there are no rules. There is nothing that limits mediation to future initiatives. Any court challenge to an exiting law created by initiative could end up in mediation.

Critics of the initiative process may find in the mediation model Davis has applied to Proposition 187 a clever way to curb the initiative. It comes at a time when support for the initiative is extremely high.

A few months ago, the Public Policy Institute of California conducted a statewide survey and asked whether an important state problem should be solved by the Legislature passing a bill and the governor signing it or solved by the people voting on an initiative. The initiative solution outpolled the government solution 75% to 21%.

The purpose of mediation is to reconcile differences between two parties. It is similar to the horse-trading that goes along in the legislative process when bills are created. However, that is not what the initiative process is about. Initiatives are an alternative to the legislative process. Under an initiative, a proposal is presented to the voters. If they like it, they vote yes; if they don’t, they vote no.

Furthermore, as in the case of Proposition 187, in many instances opponents of the passed initiative could be sitting down in a room with government officials who also oppose the approved measure. Mediation is done behind closed doors. The negotiators can come out from the secret meeting and claim they have “saved” the initiative passed by the people--and, by the way, they have a few modifications.

As to any proposition’s constitutionality, that is for the courts to determine in an open hearing with both sides of the argument--true supporters and real opponents--making the case for and against it.

The courts must continue to play the role of constitutional arbitrators on initiatives to protect individual rights and constitutional guarantees. This longtime role of the court was established by precedent by U.S. Supreme Court Justice John Marshall in the 1803 case Marbury vs. Madison.

Unless Davis’ position on mediation is challenged, the simple act of carrying it out could set a new precedent that could undercut the foundation of the people’s power of initiative.