Posted by: Michael Crowley | April 15, 2010


It’s not often you hear a California Associate Supreme Court Justice attack his own court and criticize a part of the California political landscape that has become an institution. Those who heard Justice Carlos R. Moreno impugn the California initiative system at the “feel-good” Defender Dinner earlier this month also got a history lesson.

Singling out several past propositions, but focusing on Propositions 115, 21 and 8 (the so-called Victim Bill of Rights as distinguished from the recent same-sex marriage Prop. 8 about which Moreno pointed out he dissented from the upholding of it), Moreno castigated his court for failing to enforce the “one-subject” rule — a rule, according to Moreno, ironically passed by a proposition in 1948. It was intended to limit just what has occurred in modern times. That is, long, convoluted propositions in which few, if anyone, can digest all that the future law contains.

The proposition process began, according to Moreno, as a progressive notion by Republican Governor Hiram Johnson in 1910. The Southern Pacific Railroad was controlling California politics and the referendum process was seen as a way to check that power. But by 1948, the process needed some refinement.

The single-issue voters’ pamphlet stated, “The busy voter does not have the time to devote to the study of long, wordy propositions and must rely upon such sketchy information as may be received through the press, radio or picked up in general conversation. If improper emphasis is placed upon one feature and the remaining features ignored, or if there is a failure to study the entire proposed amendment, the voter may be misled as to the overall effect of the proposed amendment.”

How prophetic those words have become in current times. Yet the California Supreme Court has refused to enforce that proposition, time and time again, according to Justice Moreno. He listed off all the divergent issues contained in Propositions 8, 115, and 21, lamenting the state’s highest court’s refusal to curtail the damage created by this bastardization of the process. For his part, Moreno cites former Justice Stanley Mosk’s insistence on the enforcing of the single-subject rule, but mostly in dissent. Moreno was appointed to the bench to take Mosk’s seat and has continued his allegiance to the single-subject rule.

Moreno detailed a litany of problems with the proposition process:

  • they are often drafted quickly and poorly;
  • they are labeled with names that are intended to evoke emotions and passion;
  • they have become the darlings of  special interests;
  • the court’s abdication of maintaining the single-subject rule has led to those working the process to add into a measure, something for everyone. Moreno said that process even has a nickname – “logrolling”;
  • the California Supreme Court spends much more time interpreting ambiguities in propositions than legislation that has gone through a multi-level vetting process.

Justice Moreno says if he is ever asked to sign a proposition by one of the ubiquitous solicitors making up to $2 per signature, he declines, saying it could come before the court.

If I am asked to sign a proposition, I ask, “Is this a proposition to end all propositions?” In the likely event it is not, I refuse.

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