Patterico's Pontifications

9/25/2005

A Dissent on the Legislature Taking Illegal Actions

Filed under: Civil Liberties,Dog Trainer — Patterico @ 11:38 am



Three cheers for Karin Klein, an L.A. Times editorial writer who has this piece in today’s paper. The paper recently published an editorial which praised the Legislature for ignoring Proposition 22 and passing legislation in favor of gay marriage. Klein’s piece is a signed dissent from that editorial. Klein says that (like me) she supports gay marriage, but (like me) she believes that the Legislature does not have the right to overrule the will of the people as expressed in Proposition 22. Klein shows real integrity with this piece, and I salute her for it.

16 Responses to “A Dissent on the Legislature Taking Illegal Actions”

  1. Hmmm … while I do not think the legislature should make a habit of repealing initiative statutes, and it certainly is not po9litically wise, I cannot for the life of me figure out why people think it illegal.

    After all, there is a difference between initiative statute and initiative constitutional amendment, isn’t there? And (besides the different signature requirements),isn’t the main difference that the legislature cannot overturn an amendment? THAT would be illegal.

    So, pardon me if I don’t buy this argument. This is a republic, still. If you want to argue that the legislature shouldn’t do it, or that it hasn’t a moral right to do it, or that they’ll be sorry if they do it — fine.

    But illegal?? Utter nonsense.

    Kevin Murphy (6a7945)

  2. Kevin,

    Unless it’s submitted to the voters — and this legislation was never intended to be — it is contrary to the California Constitution for the legislature to repeal an initiative. So, no, this argument is not utter nonsense. It’s simply the law.

    Patterico (4e4b70)

  3. This seems to be a common argument, and it’s one that always leaves me wondering the same thing:

    What’s the statute of limitations on “the will of the people”? If five years is not enough, how about 10? Or 20, or 50?

    Is the logic that if we’re going to change the law, then it should be overturned the same way it came in? I’m not sure why that would be…it seems to me that if “the will of the people” is being subverted here, alls they’ve gotta do is vote in new representatives in the California Legislature. If 61% of California voters would still vote the same after 5 years on this issue, shouldn’t it stand to reason that they’re politically powerful enough to oust the representatives they elected to enact legislation on their behalf?

    Tom (eb6b88)

  4. Ha! You are willfully ignoring the redistricting problem we have here, dude.

    Patterico (4e4b70)

  5. Ok, touché.

    But you’ve only answered one of my questions. I’ll modify: theoretically, if they are our “elected representatives,” how are they “subverting the will of the people”?

    Or more simply, is it actually illegal for the Legislature to enact legislation that undoes a proposition? Because I can’t imagine this argument would be made if the proposition were, say, 50 years earlier. Which brings me to my original question: what’s the statute of limitations on the “will of the people”?

    Tom (eb6b88)

  6. Or more simply, is it actually illegal for the Legislature to enact legislation that undoes a proposition?

    Yes.

    Patterico (4e4b70)

  7. If they don’t submit it to the voters for approval, that is.

    Patterico (4e4b70)

  8. Then again I ask, what is the difference between a constitutional amendment and an initiative statute?

    Is it only that the statute is subordinated to existing constitutional clauses? If so, would a Prop 22 have more force as an amendment? Apparently not.

    Do you happen to know which section of the consitution talks about the supremacy of initiative statutes over the legislature? It seems like a really bad idea, especially when the referendum power exists.

    Kevin Murphy (9982dd)

  9. Here you go, Kevin:

    CALIFORNIA CONSTITUTION
    ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL

    SEC. 10. (c) The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their
    approval.

    Proposition 22 does not permit amendment or repeal without the voters’ approval. And the recent bill passed by legislators was not to be submitted to the voters for their approval. Hence, what the legislature did was illegal. Arnold was right to veto it.

    Patterico (065a5c)

  10. Yeah, I found the same thing — I thought maybe you had something more.

    Near as I can tell, all this says is that, should the governor sign such a repealling stature, it does not take effect until submitted to the voters and passed.

    So, rather than calling the bill illegal, it would be more proper to say that it is subject to automatic referrendum — which likely would have happened in the absence of this paragraph anyway.

    Kevin Murphy (9982dd)

  11. No. As I understand it, the legislature had absolutely no intention of submitting the legislation to the voters. I have no idea what (if any) extra procedural requirements are involved in doing so, but as far as I know, the Legislature simply intended to pass the law and let it be challenged in court — not submit it to the voters.

    If you find anything different, let me know — but I’ll be very surprised if you do.

    The bill was illegal.

    Patterico (065a5c)

  12. Hmmm … I’ve never seen a Legislative-initiated ballot statute. Is there such a provision? The constitution alludes to such, but I see no procedure. How many votes does it take for the legislature to propose such? When is the question placed on the ballot? In the absence of such, I’d suggest that the provisions of the referendum procedure be used, which would have put the question on the November special election ballot.

    Kevin Murphy (9982dd)

  13. I geuss what I’m saying is that I don’t care what the Legislature’s intentions were. The law they passed has an auto-referendum flag on it.

    Kevin Murphy (9982dd)

  14. The law they passed has an auto-referendum flag on it.

    Not according to the legislators. They claim (implausibly) that it doesn’t change Proposition 22.

    Patterico (4e4b70)

  15. Right. If they had wanted to submit the bill to the voters, they wouldn’t have added the line claiming it doesn’t affect Prop 22. Instead, they’d have added a provision repealing Prop 22 outright.

    Xrlq (428dfd)

  16. Lest we be too quick to nominate Ms. Klein for sainthood, let’s not overlook this part of her dissent:

    I also believe the California Supreme Court should nullify Proposition 22 because it unfairly limits the rights of gays and lesbians. But until it does, it must be respected.

    Translated: I don’t want the Legislature subverting democracy, that’s the courts’ job.

    Xrlq (816c74)


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