Three propositions on the November ballot—83, 85, and 90—would make significant changes to the California Constitution or California law.
Below are summaries of what these propositions would (or might) do.
Proposition 83—Sex Offenders and Sexually Violent Predators
In 1994, in response to the brutal kidnap-murder of 12-year-old Polly Klaas by convicted felon Richard Allen Davis while Davis was on parole from another violent crime, California voters passed Proposition 184, the “three strikes” law. If one can read the mind of an entire electorate, the reason Prop. 184 passed was because of its promise to keep violent criminals off the streets.
But critics have argued that small-print “technicalities” in Prop. 184 made it have another effect entirely, giving out-of-proportion sentences to people who were once violent but whose recent crimes have been non-violent and who were not the danger to society that the voters envisaged. Had the legislature passed the three strikes law, the legislature could have looked at the results and then gone back and made adjustments to put the law on its intended course. But because Prop. 184 was made law by citizen vote, once it passed judicial review only a citizen vote can overturn or amend it, a difficult thing to do. And so, Californians are stuck with both the bad and the good of it.
In seeking to crack down on sexually violent predators, November’s Proposition 83 provides the same dangers.
In its ballot summary, the California Attorney General’s office says that Prop. 83 “increases penalties for violent and habitual sex offenders and child molesters. Prohibits residence near schools and parks. Requires Global Positioning System monitoring of registered sex offenders.”
Sounds simple enough, and it’s hard to make a case in favor of “violent and habitual sex offenders and child molesters” or to argue that we shouldn’t be protected against them. But does Prop. 83 provide that protection? Difficult to say.
In order to have its desired effect, the initiative makes a dizzying amount of changes to the state penal code, a full twelve pages of it, with references and cross-references that almost no voter will bother to look up. In one provision, it mandates prison rather than probation for “lewd and lascivious acts.” They sound really bad, but what exactly are “lewd and lascivious acts?” While they are mentioned several times in the state Penal Code, it is difficult to find a definition, and for that, one might possibly have to look to judicial decisions. Could they refer to something like being seen masturbating in public—and do voters want to punish such offenses by mandatory prison sentences—or do they involve something more intrusive and serious? You be the judge, literally.
In addition, the language of Prop 83 calls for additions to the state’s Penal Code such as this: “Notwithstanding any other provision of law, when any person referred to in paragraph (3) of subdivision (b) of Section 3000 has been released on parole from the state prison, and has been on parole continuously for six years since release from confinement, the board shall discharge, within 30 days, the person from parole, unless the board, for good cause, determines that the person will be retained on parole. The board shall make a written record of its determination and the department shall transmit a copy thereof to the parolee.”
Why is this paragraph in the initiative? It’s not clear. How would it affect violent sexual predators in California? Would it make it safer for us from them? Or would it be a loophole through which they easily slip? Would it—as Prop 184 did—end up cracking down on nonviolent sex offenders in a way not advertised in the initiative, or intended by the voters? It appears as if the average voter might have no idea, and that to vote for this initiative they would have to trust that the authors of the initiative know exactly what they are doing and can foresee all possible outcomes.
Proposition 85—Waiting Period And Parental Notification Before Termination Of Minor’s Pregnancy. Constitutional Amendment.
This proposition has all of the battlelines of the right to life/right to choice wars, with the added complication of protecting parental authority over their minor children vs. protecting minor children from abusive parents and/or guardians.
Under current California law, a teenage girl can receive an abortion without the consent of her parents or guardians.
Proposition 85 would change the California Constitution so that the parents or guardians would have to be notified by the attending physician before an abortion could be performed on any teenage girl who is unmarried, not in the military, and has not been declared “emancipated” by the court from her parents or guardians. The proposed new law would not require parental consent for that abortion—just notification—though it is difficult to foresee many circumstances where a teenage girl didn’t want to tell her parents about an abortion because they might be opposed but would go ahead and have an abortion once her parents were notified and expressed that opposition. Given that this initiative is supported by anti-abortion activists, it seems doubtful that its main purpose is to bring parents and guardians into the mix so that they can provide emotional support for ending a teenage pregnancy.
Prop. 85 also provides for waivers of the notification requirement. A physician could declare that a medical emergency necessitated the immediate abortion, making any delay for the purpose of parental notification life threatening or a risk of substantial bodily harm to the pregnant teenager. Parents could pre-approve any possible abortion of their teenage daughters (though it is hard to believe that such parents would not, thereafter, approve an actual abortion, so it is difficult to envision the circumstances in which their daughter would not inform them herself that an actual abortion was pending). Another waiver to the parental notification requirement could be done by the court upon petition by the teenager. How many teenage girls would actually exercise this option of simultaneously hiding a proposed abortion from her parents while also going to court to ask for judicial approval of a proposed abortion? Hard to say.
In the end, it would seem that there are several questions that voters need to ask to make a decision on Prop. 85. Is this merely a backdoor way to erode women’s right to choose whether or not to have an abortion, and to establish a precedent that could lead, for example, to both parental consent and/or consent from the embryo’s father? Does it protect vulnerable teenage girls from make a life-changing decision on their own by helping them to bring in the advice of the people who raised them? How many caring and nurturing parents/guardians are currently left out of that decision under current law versus abusive and/or predatory parents/guardians to whom the girls might be further exposed if the proposition is passed? Is it contradictory—as Prop 85 proponents argue—that teenagers cannot be given minor medical treatment, such as an aspirin by a school nurse, without parental consent, while the major medical treatment of an abortion can be approved on a teenager’s consent alone? Is abortion such a significantly different procedure—touching on so many social and moral directions—that it justifies such a different treatment? Is Prop 85 the only way for the proposed law’s stated goals to be realized, or are there alternative, better ways?
Tough choices for a tough issue.
Proposition 90—Government Acquisition And Regulation Of Private Property. Constitutional Amendment.
The immediate impetus for this proposition came from the 2005 U.S. Supreme Court ruling in Kelo v. City of New London in which the court ruled that it was constitutional for a city to use eminent domain to seize private homes and turn the property over to a private developer, so long as the city had ruled that the development proposed would benefit the public good. Up until the New London ruling, it had been common for governments to use eminent domain to take private property for the use of public projects such as highways or libraries or hospitals. But the new ruling made it possible for cities to take a home and turn it over to Wal-Mart, on the theory that the jobs Wal-Mart provided would be better for the public good than the homes being taken.
Rare in these days of Bush Republicans, the New London ruling united conservatives and liberal/progressives across the country on the proposition that government ought not to have the authority to arbitrarily transfer private property from one private owner to another.
Proposition 90 seeks to “correct” the Supreme Court New London ruling, putting language in the California Constitution that “bars state/local governments from condemning or damaging private property to promote other private projects, uses.” Had the initiative stopped at this point, there probably would have been little controversy, and far less opposition to its passage.
For some reason, however, Prop. 90 went further, adding language that “limits government’s authority to adopt certain land use, housing, consumer, environmental, workplace laws/regulations.”
Specifically, Prop. 90 requires the paying of property owners for economic losses resulting from future land-use decisions by state or local governments. The law would give a broad definition to private property owners to include homes, buildings, land, cars, and the ownership of businesses (separate from the buildings or land on which that business is housed). Compensation to these owners would be required if the state or local government passed laws that reduce the amount of development permitted on a land parcel or limit the height permitted for a building, two actions that are commonly in the purview of local zoning ordinances.
The proposition would also increase the amount that would be paid in compensation to owners under these circumstances, changing the current provision of “just compensation” for the property’s “fair market value” to a standard that would place the owner “in the same position monetarily” as if the property had not been taken. This could mean that the courts could rule, for example, that under Prop. 90, if the cities of Oakland or Berkeley limited the height of a proposed development to three stories rather than five, Oakland or Berkeley would have to reimburse the owner for the profit the owner would have made on the two extra floors.
Taken together, the proposed compensation provisions of Prop. 90, if passed, would appear to put an end to city zoning, making it economically impossible for cities to carry forth such actions, and letting property owners decide, for themselves, what should or should not be done with their property.
Those who think complete freedom of property rights is a good thing—even if it involves the rights of the person owning the property next door to you—should vote yes on Prop 90. Those who think that government should have a role in the planning process of how cities and rural lands are used should vote no, and come back and correct the perceived mistakes of the New London ruling in another way.