Metropolitan News-Enterprise


Friday, February 17, 2006


Page 1


S.C. Limits Courts’ Authority to Remove Initiatives From Ballot

Discrepancy Between Circulated Version and That Submitted to Officials Not Always Fatal, Justices Say


By KENNETH OFGANG, Staff Writer/Appellate Courts


A discrepancy between the version of an initiative measure circulated for voter signatures and that submitted to the attorney general for title and summary does not necessarily require removal of the measure from the ballot, the California Supreme Court ruled yesterday.

Such a discrepancy will not be fatal, Chief Justice Ronald M. George wrote for the court, when it is inadvertent and “it is apparent that the technical defect in question, as a realistic matter, did not adversely affect the integrity of the electoral process or frustrate the purposes underlying the relevant constitutional or statutory requirements.”

The high court agreed that the Superior Court and Court of Appeal were correct in entertaining a preelection challenge to Proposition 77, since the grounds of challenge dealt with the procedure by which the measure qualified rather than the substance. The justices held, however, that lower courts erred in ruling the measure off the November 2005 special election ballot; the high court on Aug. 12 of last year issued an expedited ruling placing the measure back on the ballot, pending further proceedings after the election.

Voters rejected the measure, which would have transferred the power to redraw congressional, legislative, and State Board of Equalization districts from the Legislature to a commission made up of retired judges, by a margin of nearly 3-2.

The high court, however, subsequently heard arguments on the case and rendered a decision in order to provide guidance in future cases.

Majority of Four

Yesterday’s ruling was issued by the same four-justice majority that placed the measure on last year’s ballot—George, Justices Ming Chin and Marvin Baxter, and Court of Appeal Justice Richard Aldrich of this district’s Div. Three, who was assigned to the case after Janice Rogers Brown left the court.

Justice Joyce L. Kennard, joined by Justice Carlos Moreno, argued in dissent for a bright-line rule barring any measure from the ballot if there is a substantive difference between the circulated version and that submitted to the attorney general.

Justice Kathryn M. Werdegar wrote separately, arguing that since procedural defects in petitions are never an adequate basis to invalidate a measure after an election, the issue became moot as soon as the court placed Proposition 77 back on the ballot and there was no need for “the majority’s extensive obiter dicta” on an issue that was effectively resolved last August. 

George, writing for the court, said the core substantive changes in the redistricting process that would have been wrought by Proposition 77 were the same under both versions. The only differences, he said, were with regard to technical points, such as the timing of the appointments of members of the commission, that would not have influenced voters’ willingness to sign the petitions.

“[A]n unreasonably literal or inflexible application of constitutional or statutory requirements that fails to take into account the purpose underlying the particular requirement at issue would be inconsistent with the fundamental nature of the people’s constitutionally enshrined initiative power....,” George wrote.

Kennard Dissent

Kennard, dissenting, argued that the majority’s approach is inconsistent with the fundamental requirement that the circulated measure have been submitted to the attorney general for title and summary for what the justice described as “serves the crucial purpose of establishing the official text of the initiative so that its merits may be carefully and accurately examined and debated within the Legislature and in other public forums during a period of months leading up to the election at which the initiative will appear on the ballot.”

Those who breach this “clear and easily satisfied directive” should not be permitted to claim to have substantially complied with the law if the two versions “differ[ ] in meaning,” she wrote.

The case is Costa v. Superior Court (Lockyer), 06 S.O.S. 802.


Copyright 2006, Metropolitan News Company