Three Ballot Initiatives, Not Quite As Awful As Usual

You gotta take your good news where you can get it when it comes to California’s dangerously inflexible system of initiative and referendum. So this year’s three ballot initiative – Propositions 45, 46, and 47 – qualify as good news.

It might be more precise to say: those three initiatives are less awful than usual.

I’m not talking about the policy substance of the initiatives – which involve health insurance rate regulation (45), liability for medical errors and some other things (46) or criminal charges and sentencing (47). One can make arguments for and against those policies. But the issues and the policies aren’t the first question you should ask about California ballot initiatives. The correct first question is, instead: is it possible to fix the errors in these things?

The default for California initiatives is to not permit fixing – or amendment – by the legislative body at all. We’re the only place on earth where this inflexibility is standard on initiative statutes. And it’s the fundamental problem of the process; once you do something by initiative, there’s little you can do to undo it.

Which brings us to the good – well, the not-so-awful news. All three of these measures depart from the norm by permitting legislative amendment. For that, their sponsors should be praised.

The praise shouldn’t be all that strong. Because the initiatives don’t make legislative amendment easy. All three require a super-majority vote of 2/3 – thus creating new supermajorities in supermajority-mad California – to amend the measure, and require such amendments meet the spirit of the initiative. Prop 47 also permits the legislature to use a majority vote to further reduce sentences of the crimes mentioned in the act.

These three initiatives also don’t include a reckless provision that has become a new standard of sorts for initiatives – provisions giving legal standing and a black check to the initiative’s own sponsors to defend their own measure in court. Effectively such provisions turn initiative sponsors into mini-attorneys general. Fortunately, none of the three initiatives on the ballot has any such provision.

Yes, this is a low bar – permitting fixes and not writing legal blank checks – but when it comes to California initiatives, you must lower your expectations.

This article was originally published on Fox and Hounds Daily

Joe Mathews is a Connecting California Columnist and Editor, Zócalo Public Square, Fellow at the Center for Social Cohesion at Arizona State University and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (UC Press, 2010)

Prop. 46 Will Increase Abusive Medical Lawsuits

Lawsuit abuse penetrates every level of society, perhaps nowhere more so than in the medical profession. The upcoming November election in California presents voters with a clear choice if they want to keep a tenuous lid on an explosion of costs associated with medical lawsuit abuse – vote NO on Proposition 46.  Voting down this highly-partisan proposition will allow us to continue a longstanding bi-partisan approach to reducing frivolous lawsuits defined in the Medical Injury Compensation Reform Act.

Proposition 46, on the other hand, was written by and for personal injury lawyers, ostensibly to make it easier for patients to seek compensation and in an effort to increase the payouts they receive when they file lawsuits against doctors.  This even includes when my medical professional colleagues and I work in community clinics and health centers. Proposition 46 seeks to change the law to make it more lucrative for these lawyers to file lawsuits against doctors.

There are many avenues in place for aggrieved patients to seek compensation and justice, including filing State Licensing Board complaints, seeking peer review or mediation.  These avenues are likely easier, faster and far less costly, but rarely involve trial lawyers.  Shouldn’t we be promoting more efficient, fair and less costly means to compensation and justice?  Proposition 46 would likely not result in any of the above.

In case there was any doubt about who would benefit if Proposition 46 passes, look at the list of funders. The most recent data available show that more than 97 percent of the money in support of this initiative has come from attorneys and law firms. These lawyers are showing that they are willing to pay millions of dollars in order to manipulate our legal system in hopes of receive a bigger paycheck in the future.

If it passes, Prop. 46 will have disastrous consequences. It will raise costs, driving doctors and other health care practitioners out of the state and reducing access to health care for patients. Worse, the increased costs will fall squarely on the shoulders of California working families. A study by the former Legislative Analyst in California found that Prop. 46 will increase health costs in the state across all sectors by $9.9 billion – that’s billion, with a “b.”  Translation: a family of four will end up paying $1,000 per year more in higher health costs.

At this time every year, other supporters of California Citizens Against Lawsuit Abuse (CALA) and I recognize Lawsuit Abuse Awareness Week, a week dedicated to raising awareness about the impact lawsuit abuse has on our society.

I can’t think of anything better to recognize this week than to send in my absentee ballot with a vote AGAINST Proposition 46.

Fellow at the Unruh Institute of Politics, University of Southern California

This article was originally posted on Fox and Hounds Daily.