Who is Afraid of Judicial Review?

By Eric Siddall
On March 2, 2019, the Los Angeles Times editorial board attacked district attorneys as craven politicians out to maximize punitive sentences. The reason for the attack is because a number of district attorneys have challenged the constitutionality of a law enacted by the state Legislature. The law, enacted pursuant to Senate Bill 1391, prohibits the transfers of 14 and 15-year olds to adult court- no matter how heinous the crime.
The Times editorial may have been in response to Michele Hanisee’s February 21st article “The Well-Founded Legal Challenges To SB 1391.”
The reality is starkly different: Prosecutors are protecting the state’s Constitution and institutions. In our system of government, the Legislature is not vested with absolute power to change the law. In fact, judicial review has been a cornerstone of our system since 1803.  Yet, the LA Times conveniently repudiates this doctrine when it disagrees with the law in question while fully embracing it when the courts are called to review issues that the editorial board supports. These vacillating positions on judicial review are fundamentally inconsistent. The Times editorial board’s situational ethics are quickly revealed by a cursory review of past positions they have taken herehere and here where they advocated for judicial review of enacted laws which the Times opposed.
The editorial staff claimed that Proposition 57 repeals Proposition 21.  It did not. The former merely limited the latter with regard to one discrete issue: the direct filing of cases against juveniles in adult court.  Proposition 57 is not about “treating kids like kids.” Rather, it shifted the power to determine where minors will be tried from prosecutors to judges.
Despite the L.A. Times editorial board’s claims, Propositions 21 and 57 share the assumption that certain minors over the age of 14 should be treated as adults. Specifically, Proposition 57 stated, “In any case in which a minor is alleged to be a person described in subdivision (a) of Section 602 by reason of the violation, when he or she was 16 years of age or older, of any felony criminal statute, or ordinance except those listed in subdivision (b), or of an offense listed in subdivision (b) when he or she was 14 or 15 years of age, the District Attorney or other appropriate prosecuting officer may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction.”
The state Legislature – ignoring Propositions 21 and 57 – mandated that an entire class of minors was no longer eligible for a judicially approved transfer.  In response, District Attorneys have argued that the revocation of judicial authority specifically granted by Propositions 21 and 57 to transfer these minors to adult jurisdiction unconstitutionally violated both initiatives. Armed with case law, prosecutors presented this challenge before a number of judges, and the judges agreed. Eventually this process will end in our state Supreme Court. This is the process defenders of democratic institutions should embrace; yet the L.A. Times now questions the process it has supported so many times in the past.
Despite the editorial board’s claims, the stance of district attorneys on this issue is not about being punitive; this is about the state constitution and about balancing the rights of the accused against the constitutional rights of victims. Article II, section 8(a), of the state constitution provides, “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt them.” To protect the power of the initiative, the constitution limits the power of the legislative branch to amend or repeal it by statute in  Article II, section 10(c). Our Supreme Court has held that the purpose of this limitation on legislative power is to “preclude the Legislature from undoing what the people have done.”
Yet, this is exactly what the Legislature did. They changed a law that was passed by the voters in two initiatives, Proposition 21 and 57. Proposition 21 allowed 14 and 15 years olds to be transferred to adult court and required a two-thirds majority of the Legislature to change the law. SB 1391 did not pass by those margins. As noted above, Proposition 57 continued to permit the prosecution of 14 and 15-year olds as adults. Proposition 57 allowed the Legislature to amend the law by a simple majority, but only if the subsequent legislative changes furthered the goal of the initiative. 
No one knows how the Supreme Court will eventually come down on the constitutionality of SB 1391. As the Times editorial board correctly pointed out when advocating for judicial review of an enacted law that it opposed, “the court’s responsibility is not to anticipate what the public might do. It is to decide what the Constitution commands.” I only wish the L.A. Times would grant as much deference to the courts when they disagree with a given legislative policy as when they don’t.
Eric Siddall, Vice President of the Association of Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles. To contact a Board member, click here.
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