LOS ANGELES TIMES

Monday, June 1, 1998

Election Day Approval Just 1st Hurdle for Propositions

Courts: In California, ballot initiatives routinely face legal challenges within hours of passage.

By ERIC BAILEY, Times Staff Writer

SACRAMENTO--When it comes to ballot measures, California has a tradition: Tuesday is election day, Wednesday is lawsuit day.

For years, litigation has invariably followed the state's parade of propositions, as angry foes seek to reverse the will of the voters.

Time and time again they end up going to court. Proposition 103, Proposition 140, Proposition 187, Propositions 208 and 209--you name it, there has been a legal challenge filed against it.

With nine statewide measures to be decided on Tuesday's ballot, the most prominent potential entrants in the lawsuit brigade are Proposition 226, the union dues measure, and the bilingual education-gutting Proposition 227.

If either should pass--226 is falling in the polls, but 227 appears headed for victory- it is almost certain that a lawsuit, or at least the threat of one, will surface the day after the election.

"The more California chooses to enact public policy through initiative rather than the legislative process, the more litigation will result," said Tim Hodson, director of the Center for California Studies at Cal State Sacramento. "It's not exactly what the framers of the Constitution had in mind."

Much of the time the lawsuits succeed, countering the desires of the electorate. During a 30-year stretch from 1962 to 1992, 35 ballot measures were approved, but the courts threw out nearly half of them in whole or in part. In recent years, three of every four successful initiatives have drawn legal challenges.

Campaign finance reform initiatives seem particularly vulnerable. In 1988, California voters approved two of them--Propositions 68 and 72--but both were summarily executed by the courts. The same happened with 1996's Proposition 208, though its dogged proponents last Thursday filed opening briefs in the U.S. 9Th Circuit Court of Appeals.

The Test of Time

But other ballot measures survive. Proposition 140, California's term limits law, has withstood a long legal battle. Same with Proposition 198, the blanket primary law that takes effect for the first time Tuesday. Proposition 209, the anti-affirmative action measure of 1996, also has survived the legal gantlet.

The granddaddy of them all is Proposition 13, the historic property tax cut that has been dogged by legal action of one form or another since it was approved two decades ago.

Now comes the latest batch of initiatives, and Proposition 226 seems the most fertile ground for lawyers to run wild.

There are high stakes--unions fear that their political clout will be ruined if their members get the option of blocking their dues from going toward politics. And there's a lot of money behind Proposition 226's union opponents, who have mounted a $20 million campaign against it.

"Proposition 226 is poorly written and full of legal complications," said Judith Barish, a spokeswoman for the California Labor Federation. "If it passes, there will no doubt be plenty of challenges."

What shape those would take, Barish and others in organized labor won't say. But it's easy to figure where they're headed.

Foes would almost certainly seek to immediately block Proposition 226, arguing that it violates free-speech protections, unfairly singles out unions while leaving corporate political giving untouched, and contradicts existing federal labor law.

Meanwhile, a coalition of nonprofit groups has already vowed to fight Proposition 226 in court. They say it would hit an unintended target--workplace deductions for charities. "If 226 passes, California's nonprofits will be like the victims of a drive-by shooting," warned Florence Green, executive director of the California Assn. Of Nonprofits.

Kristy Khachigian, a Yes on 226 spokeswoman, said unions don't stand a chance in court. "There's no grounds for a challenge," she said. "It's perfectly constitutional."

Michael Lotito, a San Francisco labor lawyer who represents management in disputes, dismissed the nonprofit groups' threat as "a red herring," but said the possibility that Proposition 226 is superseded by existing federal labor law remains a worthy question.

"It's ironic," Lotito said. "We started the ballot initiative process because we felt the Legislature wasn't being responsive to people. But then what happens--to keep the voters from speaking, they tie up these propositions in court."

Proposition 227 also is likely to face legal fights if passed. Thomas H. Saenz, regional counsel for the Mexican American Legal Defense and Educational Fund, said the measure's foes will mount a legal challenge on grounds that Proposition 227 robs students who don't speak English of fundamental rights to get an education equal to that obtained by their English-speaking peers.

Children immersed in English-language instruction for a year as called for by Proposition 227 could fall behind in core subjects like math and science, he said. And if their language skills lag once they're in an English-only class, they could be lost.

"We remain hopeful we'll beat it at the polls, because it's bad policy," Saenz said. "And because it's such bad policy, we'll take legal action if it's approved."

Ron Unz, the Silicon Valley millionaire whose efforts put Proposition 227 on the ballot, said he expects to prevail with voters and in court. Though federal law requires that children who aren't fluent get special help, it does not specify how that should occur, Unz said.

He remains confident that schools will devise programs that successfully assimilate children into English-only classrooms, and cites several districts in Orange County that have already scrapped bilingual education programs.

A Lawsuit Magnet

Other ballot measures that might attract lawsuits if passed include Proposition 223, which would limit school administrative spending to 5%, and Proposition 224, which would curtail privatization of state engineering jobs.

Hodson of the Center for California Studies says lawsuits will continue to dog propositions because of their very nature. Invariably spawned by a single special interest group, initiatives don't give all sides a stake in finding a solution. Ballot measures also lack the checks and balances of the legislative process, which relies on compromise and consensus.

The legislative process, however, is often criticized for its balky nature, with politicians sometimes taking years to produce results. But that, Hodson said, is a price of democracy.

"The republican form of government, where people elect leaders to form policy rather than the people deciding policy directly themselves, in the long run is a more efficient, effective and democratic way of doing things," Hodson said. "At some point we have to get back to teaching the values of a republic--that debate and slowness to a decision are somehow virtues."