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california supreme court, law, legal, politics, s168047, s168066, s168078

More on today's California Supreme Court order
In today's order agreeing to hear cases S168047, S168066, and S168078, the California Supreme Court agreed to hear the following questions: (Paraphrased)

1) Is Prop 8 a revision to the California Constitution and therefore ineligible to utilize the amendment process?
2) Does the passage of Prop 8 violate the separation of powers in the California Constitution?
3) What is the status of existing same-sex marriages that were legally performed before Prop 8?

For the most part, we knew Questions 1 and 3 were going to show up and that's what everyone was preparing to see argued, but Question 2 took a friend of mine and myself by surprise. I kinda originally ignored it because I figured it was just some random other argument someone brought in one of the cases to hedge against a failure in the original revision argument... but I decided to look it up and see what that argument was.

Well, I have to say I'm extremely disappointed with the people arguing here, because the argument they advanced here is thoroughly insane and ludicrous. I'm almost surprised the court decided to hear this portion of the complaint...

The origin of this question arises from case S168066. Paragraphs 19 - 21 of the amended petition provide the explanation of this argument:

20. Proposition 8 also violates the separation of powers doctrine embodied in the California Constitution. "From it's inception, the California Constitution has contained an explicit provision embodying the separation of powers doctrine. (Cal. Const of 1849, art. III, § 1, now art. III § 3.) Article III, section 3, provides: 'The powers of State government are legislative, executive and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." Superior Court v. County of Mendocine, 13 Cal. 4th 45, 52, 51 Cal.Rptr.2d 837, 841 (1996).
21. Under the separation of powers doctrine, "the Legislature may not undertake to readjudicate controversies that have been litigated in the courts and resolved by final judicial judgement." Superior Court v. County of Mendocino, 13 Cal. 4th 45, 52, 51 Cal.Rptr.2d 837, 841 (1996).
22. The power of the electorate in the initiative process is the constitutional power of the electors "to propose statutes ... and to adopt or reject them" (Cal. Const., art II, § 8, subd. (a)), and "is generally coextensive with the power of the Legislature to enact statutes." Santa Clara County Local Transportation Authority v. Guardino. 11 Cal. 4th 220, 253, 45 Cal.Rptr.2d 207, 228 (1995). Thus, the initiative process violates the separation of powers doctrine when it is used to readjudicate controversies that have been litigated and settled by the courts.
Note: Contents transcribed from the petition by hand and may not be accurate against the original document to the letter. The original may be accessed here: http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/20081105135855223.pdf

I can't decide whether this argument is creative or desperate, but either way it ends up being pretty insane. Basically the court would have to rule that the people are bound by the same separation of powers doctrine that officials are bound by and their powers under the constitution are limited by this precept. This alone seems pretty insane, especially when you consider that the power being exercised here is that of constitutional amendment and not simply of initiative of a statue. This is a power the legislature simply doesn't have, so the argument that the people's power to do this is the same as the legislature is absurd.

Moreover, the clear intent of the framers in providing the people with the initiative process was to provide an appropriate check against the government going shapes. Clearly the principle of checks and balances applies here. Declaring that the people should be unable to "readjudicate controversies that have been litigated and settled by the courts" is entirely antithetical to the intent of checks and balances and even from a high level perspective this argument is deeply flawed and sets a dangerous precedent. (In fact, it engraves a certain permanence to precedent that just shouldn't be there. While I agree the initiative process allows court rulings to be overturned much too easily, it clearly is within the domain of the initiative process to do, though it would be nice if it took just a bit more than %50+1.)

What a weird argument. What were the lawyers on this one thinking?

The revision argument is much much better and actually has a chance of success. I guess it's always nice to give the court something to say reject so they can end up making a mixed ruling instead of one that just does exactly and completely what one side does... but come on folks, was there no better argument?

Or did I just miss something?