Giving its traditional deference to initiative measures approved by the voters, the Supreme Court today in Briggs v. Brown upholds most of Proposition 66, which is designed to speed up executions in California. But the court ruled that the courts themselves can’t be forced to rush its death penalty reviews, concluding that provisions “that appear to impose strict deadlines on the resolution of judicial proceedings must be deemed directive rather than mandatory.” The court states that the part of Proposition 66 providing “that the courts ‘shall complete the state appeal and the initial state habeas corpus review in capital cases’ within five years is properly construed as an exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice.”
Complying with the Proposition 66 deadlines would have turned the Supreme Court into virtually a death-penalty-only court. The court seems to acknowledge this fact. It says nothing in the initiative “suggests that short shrift should be given to the decisionmaking process, or that capital posttrial review proceedings should dominate dockets to the point that other cases would be left to languish.” And it also cautions that it cannot permit “the material impairment of judicial functions by any statute.”
The court is only partially divided today. It is unanimous in rejecting the one argument that would have invalidated the entire initiative — that Proposition 66 violates the single-subject rule of the state constitution. (Cal. Const., art. II, section 8, subd. (d) [“An initiative measure embracing more than one subject may not be submitted to the electors or have any effect”].) The disagreements concern two specific provisions in the law.
The majority opinion is written by Acting Chief Justice Carol Corrigan and concurred in by Justices Kathryn Werdegar, Goodwin Liu, Leondra Kruger, and pro tem Justice Andrea Hoch. Justice Mariano-Florentino Cuéllar writes a concurring and dissenting opinion, joined by pro tem Justice Raymond Ikola. (The assignment of a temporary Chief and two pro tem justices was necessitated by the recusal of Chief Justice Tani Cantil-Sakauye and Justice Ming Chin.) Also, Justice Liu writes a separate concurring opinion, which is signed by Justices Werdegar, Kruger, and Hoch. (A majority of justices signing a concurring opinion has happened before.)
Justice Cuéllar’s primary problem with the majority concerns its treatment of the five-year deadline on the courts. He doesn’t disagree that a statute cannot impose such a deadline. To the contrary, he wants to strike down that provision as unconstitutional, instead of construing it to be directory as the majority does. He writes, “When we twist the words of an initiative and ignore its clear purpose under the guise of ‘saving’ it from being declared unconstitutional, then we are merely offering a pacifier as a substitute for a law the voters enacted, and encouraging initiative proponents to deceive voters about the actual effectiveness of a proposed law.”
Justice Cuéllar also parts company with his colleagues who allow to stand the part of Proposition 66 that authorizes an appeal to the Court of Appeal from a superior court ruling on an initial capital habeas corpus petition. After oral argument, the Supreme Court asked for supplemental briefing on this issue, asking whether the initiative provision “conflicts with the grant of appellate jurisdiction to this court ‘when judgment of death has been pronounced.'”