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Assemblyman Donald P. Wagner

Our Lawless Supreme Court

Lawless. That’s the right word for the Supreme Court’s decision in the redistricting case. Lawless, in that it ignored the law to reach a decision the Court was explicitly prohibited from reaching.

The background of this case is probably well known to anyone reading this blog. A referendum petition was circulated to challenge the Citizens’ Redistricting Commission’s approved maps of the State Senate lines for the coming election. The petitioners gathered over 711,000 signatures and, therefore, the Court recognized, the petition is “likely to qualify” for the ballot. But this likelihood creates a problem. According to the California Constitution, the existence of a referendum “likely to qualify” for the ballot – which the Court accepts that we have here – operates to “stay” the Commission’s lines. If the lines are “stayed,” though, and the election is coming, what lines should be used? That is the question the Supreme Court had to answer.

The most important point to note is the explicit text of the Constitution. Under our form of government, the Constitution, coming as it does from the sovereign people, is the supreme law of the land. It exists to inform, control, and limit the actions of the Legislature, the Executive, AND the Court. No branch of government has the legal right to disregard the express directive of the sovereign people as set forth in their Constitution.

In the redistricting case, the California Supreme Court did precisely that. And to do so is literally outside the law, or lawless.

The Words of the Constitution and the Meaning of “Stay” Were Ignored By the Court

The Constitutional text guiding the Supreme Court is clear. There is a petition “likely to qualify,” and that petition therefore will “stay the timely implementation of the map.” Cal. Const. XXI, Section 3(b)(2). The Court does not dispute this point, even citing the language and relevant Constitutional provision in its opinion. See Vandermost v. Bowen, ___ Cal. 3d ___, slip op. at 9, n.11 (2012).

In the law, the word “stay” has a clear meaning. To “stay” an action means to stop that action. The most authoritative legal dictionary of American law defines “stay” as “To stop, arrest, forbear. To ‘stay’ an order or decree means to hold it in abeyance, or refrain from enforcing it.” Black’s Law Dictionary, at 1267 (5th ed. 1979).  Thus, because the petition is “likely to qualify,” the Supreme Court was directed by the Constitution to “refrain from enforcing” the Commission’s Senate maps. In short, the California Constitution, with a simple, four letter word of indisputable meaning, stays or stops the use of the Commission lines until the people have their say on those lines at the ballot box.

The Court ignored that directive. It did the one thing expressly forbidden to it by the people. It ordered the implementation of the Commission’s lines – lines which, by definition, are unconstitutional since their use is outside the express directive of the Constitution – for the next four years.[1]

The Court’s Inherent Authority Provides No Support for the Decision

So the question then arises, how did the Court rationalize its decision to ignore the Constitution? The answer: by reliance on the Court’s own supposed inherent authority. Opined the Court, despite contrary language in the Constitution: “The stay of the challenged redistricting map, however, does not necessarily or logically restrict this court’s authority.” Vandermost, slip op. at 51. But yes it does, both necessarily and logically, at least according to hundreds of years of tradition in American law.

Admittedly each branch of government, including obviously the courts, has inherent powers. Those are powers that comes from the Constitutional framework and that are considered necessary, or “reasonable and proper,” for such branch to exercise in the performance of its duties. No one doubts that the Supreme Court has its own inherent authority in the discharge of the judicial function. However, a resort to such authority is not sufficient to save the Court’s redistricting decision and it is easy to see why.

Where the Constitution commands one thing, no branch of government has any power whatsoever, inherent or otherwise, to ignore the express will of the people and do something else. The Court gets its power – all of its power, including its inherent power – from the Constitution. It is absurd to suggest, as our Supreme Court just did, that it has inherent authority from the Constitution to disregard limits on that authority expressly put on it by the Constitution. The inherent authority of each branch of government necessarily and logically must stop at the express written directive of the Constitution. Anything else renders the Constitution utterly meaningless.

Consider, for example, that the Legislature has the authority to pass laws punishing criminals. But it is silly for the Legislature to claim the inherent power to pass laws that amount to “cruel and unusual punishment.” Why? Because the Constitution, by its very terms, denies that power. Likewise, the Executive shall take care to enforce the laws. But the Executive has no inherent power to enforce the laws in such a way as to abridge “due process.” Again, that is an inherent power denied by the express words of the Constitution.

A Court that respected the Rule of Law would similarly conclude that its inherent power to enforce the Commission’s Senate lines stops at the specific words of the Constitution which explicitly “stay the timely implementation of the map.” But our Supreme Court concluded no such thing.

Prior Supreme Court Decisions Did Not Require this Result

In the face of explicit Constitutional language prohibiting the Court from doing what it wanted, and the absurdity of the argument that undefined inherent authority could trump the express language of the law, the Court had no choice but to retreat into history to justify its decision. That history is a thirty-year old decision from the Supreme Court under Rose Bird, Assembly v. Deukmejian, 30 Cal. 3d 638 (1982). But that case, for many reasons, does not have the strength and force of law the current Supreme Court wrongly assigns to it.

In Deukmejian, the Supreme Court, in a 4-3 decision written by Rose Bird, ruled that a redistricting scheme put forth by the Legislature would be stayed while being challenged by referendum, not because of a Constitutional direction to do so, but because referenda typically stay the implementation of statutes. But, the Court went on to conclude that, despite that usual rule with regard to statutes, it could nevertheless still implement the redistricting scheme during the pendency of the challenge. On its surface, then, Deukmejian admittedly is similar to the current redistricting case. However, for several reasons, the analogy breaks down.

First, the Deukmejian decision did not confront the explicit language of the Constitution at issue here. There was no language in the Constitution affirmatively prohibiting what the Supreme Court did there. Had that language existed, then the above mentioned limit on inherent authority would have applied, and made Deukmejian as lawless as is Vandermost. Additionally, the Deukmejian Court was considering a legislative enactment, not a Constitutional provision.  All of this makes the two cases distinguishable and would have allowed the current Supreme Court to not follow Deukmejian – if the Court had been disposed to follow the Constitution rather than its prior (and, as noted below, wrongly decided) case.

Second, it is important to note in this context that the Constitutional language at issue in the current redistricting case was added to the Constitution after the Deukmejian decision. This suggests strongly that the Deukmejian case was wrongly decided, that the people wanted the stay to apply in these circumstances, and therefore added to the Constitution unambiguous language doing so. This fatally undermines Deukmejian. After all, if Deukmejian were right, the relevant Constitutional “stay” language would be unnecessary. Yet there is a well-accepted principle of law which holds that no language

in the Constitution is to be interpreted as unnecessary. See e.g., California Mfrs. Assoc. v. PUC, 24 Cal. 3d 826, 844 (1979); Fields v. Eu, 18 Cal. 3d 322, 328 (1976).  Thus, this new language must mean something.

In other words, the idea that Deukmejian is rightly decided and the later addition of the stay language of Article XXI, section 3, cannot reasonably be reconciled. Since no part of the Constitution is unnecessary, the addition of the explicit stay language in Article XXI overrules the Deukmejian case. Accordingly, Deukmejian provides no valid legal authority to justify the Court’s disregard of Constitutional language in the Vandermost opinion.

Third, regardless of the continuing vitality of Deukmejian after the adoption of the new Constitutional language, the case is an extraordinarily weak precedent. The case itself failed to follow the prior Supreme Court decision of Legislature v. Reinecke, 6 Cal. 3d 595 (1972). Moreover, Rose Bird’s analysis in Deukmejian is so deficient just on grounds of legal scholarship that her written opinion drew scathing dissents from three of the six then sitting Justices, representing both the liberal and conservative wings of the Court.[2] Conservative Justice Frank Richardson carefully deconstructed the Court’s treatment of the state legislative lines. Justice Stanley Mosk – by all accounts the most liberal and most respected member of the Court – also blasted Chief Justice Bird’s ruling, joined in completely with Justice Richardson analysis, and, in his separate writing, called Justice Richardson’s critique of Bird “irrefutable.” Deukmejian, 30 Cal. 3d at 693 (Mosk, J., concurring and dissenting). Jerry Brown appointee Justice Otto Kaus agreed with Richardson and Mosk.

In addition, as mentioned, the long-since discredited Rose Bird wrote the opinion in Deukmejian barely a few years before being unceremoniously booted from the Court by the public. She wrote for herself and for only two other Supreme Court justices. The deciding vote in this 4-3 case was actually cast by a lower court judge, Stephen Tamura, not by a Supreme Court Justice. Tamura was hand picked by Rose Bird for that decision. See Deukmejian, 30 Cal. 3d 638, at 638 n.*; see also Los Angeles Times, “Prosecutors Charge That Rose Bird Used a Form of ‘Court-Packing,’” by Bob Egelko, Nov. 3, 1985 (citing, among others, the appointment of Judge Tamura in the Deukmejian case).

Finally as to Deukmejian, the current Supreme Court has every right to overrule that case and not follow it. Court decisions are not written in stone. Subsequent courts can disregard or overrule prior decisions that are poorly reasoned, or are bad law, or express legal policy choices the current court does not wish to follow. Regardless of how weak or strong is the precedent, regardless of how analogous the two redistricting situations in Deukmejian and Vandermost are, the Court does have inherent authority NOT to follow a bad prior decision if it chooses not to do so. That is the choice the Court should have made here, as it is the course explicitly directed by the written words of the Constitution.

In short, the thirty-year old Deukmejian decision is too unpersuasive and flawed a precedent to support the current redistricting decision.

The Court Disregarded Hundreds of Available Options

Finally, while the Court’s decision should not have come down like this if the Rule of Law meant anything, it is important to note also that it need not have come down as it did. This is not a situation of bad facts making bad law or a Court pressured into making the best of a bad situation. The Court was not faced with an unfortunate but inevitable choice to use the Commission’s lines. It had many other options. It could have adopted any draft Commission map. It could have adopted any draft submitted to the Commission by the many interest groups who participated in the process. It could have – and probably should have – appointed a Special Master to draw new lines. It could have nested two Assembly Districts into a single Senate District. There were literally hundreds of different options and lines available to the Court.

Unfortunately, the one set of lines the Court could not enforce under the law, the one set of lines the people of California in their Constitution directed the Court to “refrain from enforcing,” is the precise set of lines the Court adopted. That is a preposterous and arrogant insult to the people. It is also abject lawlessness.

[1] Regardless of what happens with the vote on the referendum in November, Senators elected under these unconstitutional lines will remain in office for their full four year terms, i.e., through November, 2016. Thus, and depending on what the eventual lines look like, some voters could well be “deferred” not just for two years as inevitably happens in Senate redistricting, but for all four years. Such voters could potentially mount a federal Constitutional challenge of their own under the Voting Rights Act and the principles of “one man, one vote” set out by the United States Supreme Court fifty years ago in Baker v. Carr.

[2] For the record, these were concurrences in the Court’s treatment of the Congressional lines under Federal law. They were dissents on the relevant points here, the Deukmejian Court’s treatment of the state legislative lines.

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