Legislation
March 24, 1999
ANNOUNCEMENTS:
Monday: CB 423-40 and turn in bills
Wednesday: 457-81; CB Supp. 79-86
DIRECT DEMOCRACY (wrap-up)
Term limits ballot proposition (CA)
3 parts:
(1) term limits
(2) retirement plan abolished in favor of Social Security
(3) legislature operating costs limited
Class opinion (unanimous): proposal refers to lifetime term limits, not just consecutive term
limits
Why?
 Default assumption – if consecutive only, would have provided the length of time before they
could serve again
 Could be read to target incumbents and get them out of office
What do you make of the fact that the CA AG changed his mind between lawsuits saying in the
first that it did not create a consecutive term limit ban, but not a lifetime ban?
 Probably just trying to save the initiative
 Trying to save his own job – it applied to the AG as well! (Kirk)
There’s an assumption that the voters have done their homework. See the uninformative blurb
that appears on the ballot:
TERMS OF OFFICE. LEGISLATURE. INITIATIVE CONSTITUTIONAL AMENDMENT.
Limits: terms of specified state officials, legislators’ retirement, pensions. Legislature’s
operating costs [continued to describe te predicted financial impact of the proposal, as
required by state law].
Yes ___
No ___
(CB Supp. p. 152)
Wasn’t there enough indication that there was a lifetime ban in the ballot materials? “Lifetime
ban” is written all over the opposing arguments.
 Voters may think that persuasive political messages distort issues.
What about the media? Media coverage seemed to say that one side was for lifetime bans and
the other wasn’t.
 Should courts be looking at mass media to determine what information was before the
electorate and the latter’s likely response. How? Court-convened focus groups? Hearing?
 What mass media? Circulars, newspapers, radio ads, TV news stories…
Assuming that the ballot measure is ambiguous, meaning it can plausibly be read either way…
Legislation
March 24, 1999
J. Reinhardt in Jones v. Bates (9th Cir. panel) comes up with a novel principle of law (p. 36)
ambiguity
+
amendment involving
fundamental voting rights
=
constitutional
invalidation
N.B. This is not to say that the curtailment of fundamental rights is unconstitutional per se. The
ambiguity raises it to the level of unconstitutionality.
Court: This is a violation of the due process-based right to be informed by a non-ambiguous law
when a fundamental right is at stake.
Will this give incentive to drafters to make proposed legislation unambiguous?
Maybe not:
 there are some topics that are technical and can’t be made completely unambiguous to the
uninitiated
 Reinhardt’s test only applies to a small subset of cases – those involving fundamental rights
Should there be different rules for drafting for voters than drafting for legislators?
Judges don’t ask legislators whether they understand every bill they read nor whether they even
read the bill. Somehow easier for judges to assume ignorance of voters than of legislators.
There’s a degree of unseemliness of the judiciary looking down its nose at the voters. Voters
have more info about initiatives in direct democracy than voters do about bills. Do they have less
than legislators do about bills? Should we be making that comparison?
This test was good law for a few weeks, then the full 9th Cir. sitting en banc, overruled
Reinhardt’s panel.
Maybe courts should use the power of construction, instead of the bigger hammer of
constitutional invalidation, to narrowly construe the initiative and keep it alive.
Court’s options:
1. ambiguous, but we interpret it as X. (CA Supreme Court in Legislature v. Eu)
2. ambiguous, we’ll construe it narrowly.
3. ambiguous, does it or doesn’t it violate a fundamental right? (9th Cir. panel)
Legislation
March 24, 1999
Questions implicated by direct democracy…
?
What’s the relationship between majorities and minorities in a democracy?
Hunter, Arthur, Romer are all illustrations of one discernible pattern: the claim that initiatives
selectively disadvantage socially subordinated groups. See p. 76, fn.o – 79% success rate for
initiatives relating to restricting gay rights, 75% for other restrictive measures. Generally
though, only 1/3 of ballot measures pass.
?
What do we mean by democracy?
Proponents of direct democracy claim that it’s the most democratic of all options – pure
popular sovereignty, people making their own laws, greater political participation.
In contrast, republican democracy has safeguards in place on (sometimes fleeting) popular
sentiment and provides superior protection for minorities. Representative democracy also
promotes better deliberation – legislative deliberation > popular deliberation; committee
process.
Legislation
March 24, 1999
INTERPRETATION OF STATUTES
What principles do courts use to decide how to construe statutes? How are ambiguities resolved?
What assumptions do courts make about legislatures when designing rules? Do they make
sense? Are they supportable?
Our goals:
1. Learn how to argue to courts about statutory interpretation.
2. Take a critical distance perspective on what courts are doing.
Statutory interpretation is the meeting of the legislative and judicial branches. The legislature
has acted, the court now picks up the ball.
What role should the court play?
Concerns:
 democratic legitimacy
 legislation from the bench/judicial activism vs. judicial restraint
 measuring success in the system
judicial activism/restraint?
good rules?
effect on legislature?
Capsule historical overview (pp. 385-91)
Initially there was judicial hostility toward statutes as products of brute political force vs. the
common law which was viewed as a product of higher more reasoned, rational exercise. Over
time, skepticism (at least in an overt sense) tempered, and statutes come to comprise more and
more of U.S. law.
Courts transitions from creating law in numerous areas, e.g., torts, to an interpretive role.
Attack by legal realists – don’t believe that interpretation is just interpretation and that it’s valueneutral. Courts have no choice but to make value-laden decisions. Casts doubt on judicial
legitimacy if legitimacy = restraint.
Response by Hart & Sacks who wrote The Legal Process (published posthumously): courts can
both be faithful to legislative will/design and exercise independence. See, e.g., Riggs v. Palmer,
p. 389 (refusing to interpret state inheritance law to allow murderer to inherit from victim’s
estate).
Legislation
March 24, 1999
Bailey v. U.S. (US 1995, Supp. Mat. p. 45)
Facts: Statute criminalizes using and carrying a firearm during and in relation to a drug
trafficking offense. 1(Bailey) had gun in bag in locked car trunk and drugs were found
in passenger compartment. 2(Robinson) had gun in a locked trunk in her bedroom
closet and dealt drugs in apartment
Issue: What does the word “use” mean?
Holding: further drug offenses or protect drug possession
Test: accessibility and proximity (Court of Appeals)  active employment of firearm
Reasoning:
 “Use” must add something that “carry” does not say, otherwise it would be mere
surplusage. “We assume…”(p. 47) – sometimes there’s nothing new added, e.g.,
“null and void”, “free and clear.” Here, the court chooses to assume without
evidence. Court also reasons from absence of evidence that no broader application of
the word “use” is intended since Congress did not so specify.
 Legislative history sheds light on drafters’ intent. “Use” and “carry” were originally
in different subsections. Phrase used to read “use to commit.” Another section read
“intend to use.” BUT does anyone on the drafting team sit around making sure the
bill is completely internally consistent?