“Could Prop. 49 be Prop. 140 redux?”

David Ettinger:

Which raises the question of how the Supreme Court’s order will affect inter-branch relations and brings to mind the court’s action almost a quarter century ago on another ballot measure, Proposition 140.  That measure was definitely not placed on the ballot by the Legislature.  Instead, it was a citizens’ initiative that imposed term limits on legislators and cut the Legislature’s budget.  After its approval by 52 percent of the vote in 1990, the Legislature challenged its validity.  But the Supreme Court mostly upheld the measure (Legislature v. Eu (1991) 54 Cal.3d 492), which greatly displeased the Legislature.

Former Chief Justice Ronald George, who had just joined the court as an associate justice at the time of the Prop. 140 case, recounts in his memoir how the court’s ruling soured relations between the legislative and judicial branches.  George says that the court’s decision — especially the inclusion in the opinion of some inflammatory language — caused “damage that persisted for years.”  According to George, “legislators view many court decisions . . . through a political prism” and “their immediate reaction . . . was to view the [Prop. 140] decision as something that would merit retribution on their part, or, as they put it more succinctly, ‘payback.’ ”  He also recounts a legislative leader saying to then-Chief Justice Malcolm Lucas, ” ‘After what you guys just did to us, we would look like a bunch of wimps if we didn’t do anything to you.’ ”


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