California chief justice criticizes initiative process

The moderate Republican says it has made 'state government dysfunctional'; he signals a sense of urgency and willingness to push for reforms.

By Maura Dolan

October 11, 2009

California Chief Justice Ronald M. George, in a speech before the American Academy of Arts and Sciences, says the ease by which Californians can make new laws at the ballot box has "rendered our state government dysfunctional."

George, who spoke Saturday in Cambridge, Mass., used the occasion of his induction into the academy to criticize the initiative process and call for reform. An advance copy of the speech was released by a Supreme Court communications officer. 

George, a moderate Republican, has been critical of the initiative process in the past, but his remarks to the national group signaled a sense of urgency and willingness to push for reforms.

George noted that in November, voters passed initiatives to regulate the confinement of fowl in coops and passed Proposition 8, which overturned part of a California Supreme Court ruling that gave gays and lesbians the right to marry.

"Chickens gained valuable rights in California on the same day that gay men and lesbians lost them," George said.

George was the swing vote in the historic May 2008 decision to end a ban on same-sex marriage. Legal scholars said the 4-3 ruling he wrote would define his legacy. The George court is considered moderately conservative and, until the marriage ruling, cautious. The court has only one Democratic appointee.

After voters approved Proposition 8, it was challenged in court. George again wrote the majority opinion, this time upholding the initiative that overturned a critical part of the court's ruling against a novel legal challenge. The 6-1 decision said Proposition 8 was a limited constitutional amendment rather than a more sweeping revision that required legislative involvement.

George's opinion read in parts as a lament. He said the court's hands were tied by precedent and California laws that gave voters wide freedom to amend the state Constitution. At the time, opponents of same-sex marriage were threatening to oust justices at the ballot if they voted to overturn Proposition 8. 

"The court over which I preside frequently is called upon to resolve legal challenges to voter initiatives," George said in his speech. "Needless to say, we incur the displeasure of the voting public when, in the course of performing our constitutional duties as judges, we are compelled to invalidate such a measure." 

Much of the state Constitution and many state laws "have been brought about not by legislative fact-gathering and deliberation but rather by the approval of voter initiative measures, often funded by special interests," George said.

"These interests are allowed under the law to pay a bounty to signature-gatherers for each signer. Frequent amendments -- coupled with the implicit threat of more in the future -- have rendered our state government dysfunctional, at least in times of severe economic decline."

George noted that voter initiatives have restricted the taxing power of the Legislature, leaving state revenues dependent on a "boom or bust economic cycle."

"The consequences this year have been devastating to programs that, for example, provide food to poor children and healthcare for the elderly disabled," he said.

Unless Californians reform the initiative system, "we shall continue on a course of dysfunctional state government, characterized by a lack of accountability on the part of our officeholders as well as the voting public," George said.