On separate occasions last week, two justices of the California Supreme Court criticized the initiative process. One critique charged that the process could deny citizens basic rights; the second fingered initiatives as a key reason for California’s dysfunctional government. Both arguments are off-base and, to use court terminology, need to be appealed.

Early last week, Justice Carlos Moreno charged that certain basic rights could be subject to change by simple majority votes under the initiative process. Moreno’s remarks were delivered in reference to the gay marriage initiative. What’s odd about the comment is that the Justice ignores the role of our courts in the governing process.

If a law is indeed unconstitutional – if rights are being taken away – then it is the role of the court to overturn the offending law. In the case of the gay marriage initiative, that legal test is going-on right now. Laws passed by legislative bodies face the same scrutiny. Courts are not shy about declaring laws unconstitutional, it happens all the time.

At the end of the week, Chief Justice Ronald George, in a speech at Stanford’s Law School, said California government has been paralyzed by ballot box budgeting. Charging that initiatives “have rendered our state government dysfunctional,” he cited specifically Proposition 13’s two-thirds vote requirement to raise taxes.

George noted the history of the initiative to get around special interests that controlled the legislature at the turn of the twentieth century and asked if special interests have now taken over the process. He called for initiative reforms.

There is nothing wrong with seeking to improve and reform the initiative process. I was appointed to two state commissions looking at initiative reforms, in 1993 appointed by Governor Pete Wilson and in 2000 appointed by Speaker Bob Hertzberg. I signed off on some of the reforms that came out of those meetings.

However, Chief Justice George is off the mark in his criticism when he says that special interests are now on the outside of the governing process and the good governance is on the inside.

Proposition 13 was the furthest thing from a special interest initiative unless you count the taxpayers as special interests. And, George ignores that the legislature is still controlled by special interests—no longer the railroads of Hiram Johnson’s day– but the public employee unions who have a firm grip on the majority party. If you doubt that statement listen to would-be Democratic gubernatorial candidate, Jerry Brown.

Los Angeles Times columnist George Skelton interviewed Brown last April. In responding to Skelton’s question about the power of public unions, Brown said: "Well, they certainly are a formidable force now." And: "One cannot be a Democratic candidate without having good relationships with public sector unions. That’s a fact."

If the legislature is still in the grip of a special interest then the initiative power is an important relief mechanism for the public at large.

Chief Justice George also should reconsider where the dysfunction of ballot box budgeting comes from. Bob Stern, president of the Center for Governmental Studies, recently told legislators at a hearing that after studying the budget his Center concluded, “Most of the ballot-box budgeting has come from you.”

It’s time for the justices to review the record.