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The Bird court's 1983 decision to remove the Sebastiani Reapportionment initiative from the ballot, a measure designed to establish new legislative districts in California, was consistent with previous rulings on ballot initiatives. In the 20 years preceding the Sebastiani decision, four of eight initiatives that went before the California Supreme Court were invalidated, and the other four were partially invalidated or so narrowly construed as to stop at least part of what their proponents had intended.1 The Chief Justice evaluates each case on its individual merits: in 1985 she was the lone dissenter when the court voted to invalidate a portion of the state's Victim Bill of Rights, which had been approved by the voters. In her dissenting opinion, Chief Justice Bird said, "It is not within this court's power to ignore the expression of popular will and rewrite the statute."2
The Bird court, by striking down the Sebastiani Reapportionment initiative and the Balanced Budget initiative, deprived California's electorate of the opportunity to vote on legally qualified ballot measures. No California Supreme Court found such action fitting or necessary since the late 1940's. The Bird court has consistently thwarted the initiative process in the state.3 The 1983 Sebastiani decision followed the court's 1982 decision to allow the pre-existing contested legislative districts to be used in the November 1982 statewide elections. In both cases the court chose the alternative that maximized the advantage of the Democrats over other available alternatives that would have enabled both Democrats and Republicans to fight the political battle before the voters on relatively fair terms.4
The California Constitution provides that in each year following the national census (taken at ten-year intervals) the Legislature must adjust the boundaries of each state Senate and Assembly district. In 1981, the Legislature enacted a reapportionment plan which was signed into law by Governor Jerry Brown. The California Republican Party and the Republican National Committee subsequently circulated a petition that qualified for the ballot as a referendum to invalidate the reapportionment plan. By law, qualification of a referendum suspends the effectiveness of a statute, and passage of the referendum voids the legislation. Members of the Assembly, state Senate, and of the Congress filed a petition challenging the qualification of the referendum. They also claimed that, regardless of its qualification, the district boundaries established by the delayed legislation should be used in the 1982 election.
The California Supreme Court, in an unanimous decision, rejected the challenge to the qualification of the referendum. The court also voted unanimously that the Congressional districts should remain the same. However, in a 4-3 decision written by Chief Justice Bird, the court held that the other boundaries established by the challenged legislation should be used in the election. The 1982 election was held with members of the state Senate and Assembly running in the districts they had created under the 1981 legislation. The referendum to invalidate that legislation appeared on the same ballot and was passed, requiring a new reapportionment. Under a special urgency provision that insulates legislation from referenda, more than two thirds of the Legislature enacted a new redistricting statute -- effective immediately. Republicans again sponsored an initiative to invalidate the new reapportionment plan, and the initiative qualified for the ballot. Democrats petitioned the California Supreme Court to prevent a vote on the initiative. In a 6-1 per curiam decision, the court barred a vote on the initiative, holding that more frequent reapportionment was precluded by a provision of the California Constitution. Members of the court joining in the per curiam opinion were Chief Justice Bird and Justices Mosk, Broussard, Kaus, Reynoso, and Grodin. Justice Richardson, the only Republican member of the court, dissented.5
Prior to the 1983 Sebastiani case, the last time the California Supreme Court opted for pre-election removal of an initiative was in 1948 (McFadden v. Jordan).6 However, since 1964, the court has either partially or totally invalidated seven initiatives and one referendum after they had been approved by voters.7
1 Los Angeles Daily Journal, "The People v. the California Supreme Court," by Preble Stolz and Alfred Mamlet, October 12, 1983, p. 4.
2 Los Angeles Times, "Court Rewrites Insanity Defense Rule," by Dan Morain, September 17, 1985, I: p. 3.
3 Californians to Defeat Rose Bird, campaign literature, II. D.
4 Johnson, Phillip, "The Court on Trial," op. cit., pp. 10-13.
5 Thompson, Robert, "Judicial Independence, Judicial Accountability, Judicial Elections and the California Supreme Court," draft, pp. 42-44.
6 Los Angeles Times, "Court Giving Initiatives Closer Scrutiny," by Dan Morain, October 21, 1984, I: p. 1.
7 Los Angeles Daily Journal, "The People v. the California Supreme Court," op. cit., p. 4.