Dan Walters

Dan Walters: Political activists increasingly turn to courts for their causes

Dan Walters
Dan Walters

The passage of Proposition 13 – California’s landmark property tax limit – in 1978 marked a major, even radical, change in how the state makes public policy.

Ballot measures, some from the political right and some from the left, proliferated during the ensuing decades as the Capitol’s policymaking role diminished.

The governor and the Legislature became subsidiary and reactive to what was happening in the initiative arena, even to the point that politicians themselves began using the ballot.

That syndrome hit a high – or low – point in 2005 when then-Gov. Arnold Schwarzenegger, declaring it to be a “year of reform,” tried, but failed, to win voter approval for four far-reaching ballot measures.

Ever since then, the number and scope of ballot measures have declined. Only occasionally, most notably with the anti-gay-marriage Proposition 8 in 2008, have ballot measures represented major policy issues. More often, they have been relatively narrow efforts by specific interest groups.

If ballot measures filled the vacuum created by legislative dysfunction in the decades since 1978, what now is filling the void that their fading presence leaves?

The courts.

It’s truly astonishing to survey what state and federal judges have wrought in recent years – including a historic rejection of Proposition 8, symbol of the policy power shift.

Political activists, shunning both a lackluster Legislature capable only of playing small ball and the expensive and uncertain initiative process, have increasingly turned to the courts to press their causes, often scoring major wins.

Federal judges not only voided Proposition 8, but have compelled Gov. Jerry Brown and the Legislature to overhaul the prison system, established a new de facto water-allocation policy and, most recently, declared the state’s death penalty to be unconstitutional because it’s almost never carried out.

State judges have held up financing for Brown’s bullet train on its legality and declared that his other pet project, twin water tunnels beneath the Sacramento-San Joaquin Delta, cannot use property without permission for soil testing. One state judge also overturned state teacher tenure laws.

All of those decisions have sparked, or soon will spark, responses from the governor and the Legislature on issues that the politicians would just as soon leave untouched.

Moreover, many high-octane cases are still pending, including one alleging the state has ignored needs of “English learner” students, and another challenging the cap-and-trade program as an illegal tax.

It could be fairly said that from policymaking primacy 40 years ago, when Brown won his first term as governor, the Capitol has slipped into a secondary and then tertiary status, dealing mostly with relatively minor interest-group matters but usurped on the most vital issues.