A few years ago, the citizens of California prohibited government racial preferences by passing Prop. 209. It has withstood court challenges, so it is a part of California’s Constitution. The Legislature does not have the power to change it. However, the Legislature is on the verge of enacting A.B. 703 as a sneaky effort to do just that.
Can they get away with this? If this bill becomes law, will the Courts allow the legislature to undo the clear intent of a Consitutional ballot proposition?
Sorry. forgot the cite
Ward Connelly is an astute politician (wasn’t he the author of prop 209?) who will get something going to make sure this doesn’t happen. You can bet on that.
All I’ve got to say is California is screwed up, has been screwed up for a while, and at the rate we’re going, won’t be unscrewed up for many years to come.
A legislator in a state assembly introduced a poorly worded and contradictory bill. Gosh! That’s never happened before! :eek:
I was really starting to worry about you, December. It’d been nearly 36 hours since you’d last posted a rehashed blog or warmed-over Rush rant. Glad you’re OK, buddy! {{hug}} 
To answer the OP:
OK, so some nutball introduced a bad bill, and Davis ( Davis!!! ) vetoed it.
Seems like a rerun of a non-issue at best.
Yes, Davis vetoed a past attempt to undo Prop 209. It will be a rerun if Davis vetoes this version. I think he will veto it, because he’s threatened with a recall, and he doesn’t want to give the voters yet another reason to dislike him.
But, what if Davis signs this bill? Surely the legislature has some right to flesh out the terms of the Constitution. How far does this right extend? Can the legislature more-or-less void a ballot proposition by artfully defining its terms? Their definition of “racial discrimination” isn’t completely arbitratrary, since it’s based on the United Nations’s definition. IMHO the UN’s definition is pretty well incomprehensible, but the California courts may not see it that way.
I think the Courts would overrule this bill because it undoes a Proposition that was pretty clearly understood by the voters. However, they might prefer to wait and see how the bill got applied. They might want to overrule some applications and allow others. E.g., they might decided that preferences are OK in hiring but forbidden in college acceptances.
Are there any lurking lawyers who can speak on this sort of issue?
It sounds like what was missing was the definition of the term “racial discrimination” in the bill passed by the voters. It’s this oversight that assemblyman Dymally is taking advantage of.
Would I be correct in thinking that if this back door weren’t left open, then the Dems would be unable to reverse the wishes of the voters?
Nah, they would probably just come up with another way.
Assuming that Governor Davis were to allow such a bill to become law, the law would only be stricken if the California Supreme Court determined that the law violated a provision of the California Constitution. If the phrase from the California Constitution inserted by Proposition 209 (“racial discrimination”) is not otherwise defined by the Constitution, then the Legislature is probably free to attempt a definition. The response of the people would be Proposition 9999999 (or whatever number California is up to these days; have they gone back to 1 yet?), which would insert a correcting definition in the Constitution.
This sort of silliness happens in California often, in large part because of two factors: the propensity of the Legislature (run by Democrats for almost two generations now) to ignore the wishes of most Californians (thank goodness in some cases!), and the propensity of Californians to use the initiative to tinker with damn near anything anyone wants to get their dander up about. In some ways, I’m glad I stopped living there.
Could you explain that a bit more? Why does a term that seems pretty self explanatory need further explanation? It would seem that any part of any constitution can be undone legislatively, simply by redefining the terms. Start with the US Constitution. “Legislature”, “inhabitant”, “taxes” et. etc. etc. - there’s no limit to what you can undo by playing these kind of word games. (I am aware that the legislative and judicial history of the US constitution is a greater bar, but the principle is the same).
I don’t see how this would help - someone could redefine the words of the correcting definition. Once you establish a principle that you can decide that the meaning of words in a law or section of the constitution do not conform to the common understanding - and the understanding of those who enacted it - there is no limit to what you can do.
This type of thing is the worst kind of legalistic shenanigans that give lawyers, legislators and judges a bad name. I hope it isn’t possible.
Hmmm, not really. Assume that Proposition 209 had bothered to include in the language inserted into the California Constitution a definition of the words “racial discrimination” to mean, say, any differentiation of one group of people from another through use of racial characteristics. This would preclude Mervyn Dymally from re-defining the words racial discrimination. Further, by having provided the meaning for the words, it would make it harder for the Legislature to “define” some other phrase to try and undo the clear intent of the definition inserted by the proposition.
I haven’t looked at the actual language inserted by Prop 209, but I am guessing that the authors got hoist upon their own petard in attempting to avoid the outright appearance of prohibiting affirmative action. Had they inserted a clause specifically indicating that affirmative action was being outlawed, Dymally would be up a creek without much of a paddle.
As for “redefining” the common meaning of words in a Constitution, that happens all the time. I reference for you the cases of Plessy v. Ferguson and Brown v. Bd. of Education. But that isn’t what Dymally is doing. What he is doing I will give an example of from my own past history.
California in the long ago years of my early adulthood passed legislation attempting to force polluting cars off the road. If you lived in certain counties with bad air pollution, you had to have your car inspected every two years. The purpose of the inspection was to certify that your smog control equipment was working. If it wasn’t, you had to fix it, or you couldn’t register your car.
The Legislature didn’t want poor people failing to register simply because they couldn’t afford to repair their catalytic converters, so they put a lid on the amount of repairs you could be forced to accomplish. That limit, IIRC, was $50. BUT, they didn’t want anyone to avoid the effect of the law who had deliberately tampered with the equipment, so they exempted repairs to tampered cars from the limit.
The Bureau of Automotive Repair issued regulations setting up the vehicle inspection program. Among the regulations they issued were regulations providing definitions of “tampered” systems. In their definition, a system was tampered with if, among other things, it was missing a piece of the smog control equipment. Smog control equipment was defined as including not only the smog pump, but also the belt that ran the pump.
I go in to have my car checked. The pump is frozen. Cost of repairs is $130 or so (this was 1985). So I’m exempt. BUT, the frozen pump has caused the belt to break. Now I’m missing essential equipment, meaning I have “tampered” with my car. So I have to fix the smog pump, replace the belt, and get a certificate of passage. NOT a happy camper was I.
Is this what the Legislature intended? Of course not. They meant to prevent people from INTENTIONALLY removing equipment from avoiding fixing it. But by artfully defining the words contained in the legislation, the BAR managed to ensure that additional cases of smoggy cars got repaired.
Mr. Dymally is attempting to define the term “racial discrimination” to allow continued use of affirmative action. This isn’t completely out of left field; an argument can be made that the courts don’t consider affirmative action as “racial discrimination”; witness the cited international treaty. But would the result contradict the intentions of the people who wrote the law? You bet.
Thanks for your input, DS. My memory is that the authors made no secret of their intention that Prop 209 end affirmative action by the State. Their possible mistake was failing to define “racial discrimination”, which they apparently thought was a well-understood word. Of course, “affirmative action” is not a well-defined term.
Here’s what seems to be a copy of the official California Voter’s Pamphlet. It looks pretty clear. It begins
The Arguments For and the Arguments Against both both assume that this Proposition would end various outreach and preference programs.
IANAL, but I have been involved in a few contractual disputes. The intent of the parties seems to be how ambiguities are resolved. Would a similar principle apply in this case? That is, if it can be shown that Prop 209 was advertised as banning affirmative action, would the court be more apt to rule against a law attempting to thwart the electorate by changing the definition of “racial discrimination”?
Note that Prop. 209 bans “preferential treatment” as well as “racial discrimination,” so even if the Legislature could get away with re-defining “racial discrimination,” the ban on preferential treatment would still apply, I guess.
DSYoungEsq,
As I’ve pointed out previously, it would not do this - it would only make the game get played at a different level. Using the exact same methodology as is being contemplated here, someone could introduce legislation to redefine “differentiation” or "racial characteristics - possibly even other terms. As we see all too often on these boards, many or most words can have different meanings in different contexts, especially when looked at very precisely, and if we allow that someone else (in this case the legislature, but also a judge) can define any term as whatever meaning they choose, it effectively undermines the ability of those who passed the bill (in this case the people) to legislate anything.
I am not familiar with the legal issues you refer to - perhaps you would be more specific (I thought the court’s turnabout there was with regards to whether “separate but equal” was an oxymoron - if so I don’t see a connection to our issue here). But if the same thing happens all the time, it is an even worse travesty.
You are missing the crucial point with this example. In your case, the intent of the legislature was not being honored, in favor of a literal adherence to the plain meaning of the words. What I am talking about is when it is not just the intent, it is the words themselves that are being twisted. A huge, huge difference. (FWIW, I don’t have a problem with them deciding that “tampered” includes a broken belt, but I don’t see why they would call it “deliberately” tampered. But if the language of the law did not say “deliberately” - this was merely the intent - then you would be stuck. Not fair play by the BAR, but within the confines of the law, as noted above.)