Assembly v. Deukmejian

MOSK, J., Concurring and Dissenting.

I join Justice Richardson’s concurring and dissenting opinion. His position is irrefutable. Nevertheless, a bare majority of this court have become entangled in the “political thicket” by ignoring their obligation of neutrality on a partisan issue, a neutrality that can be observed only by maintenance of the status quo in legislative districting until the people speak at the forthcoming election. Legislature v. Reinecke (1972) 6 Cal.3d 595 [ 99 Cal. Rptr. 481 , 492 P.2d 385 ], written by Chief Justice Wright and concurred in by a unanimous court, charts the course we should follow.

An additional observation on the problem is appropriate. One need not be a cynic to detect the hypocrisy in the political gamesmanship known as reapportionment. Whichever party is in power immediately following the decennial census inevitably undertakes the task with a view to its self-preservation; and the opposition cries foul. The reality is that neither party has a monopoly on virtue. As a result, every 10 years hereafter we may be compelled to endure a gubernatorial veto or a referendum sponsored by the party out of power—perhaps successive referenda after further reapportioning efforts—and to that extent the legislative and political processes of this state will become periodically impotent.

At present the courts can do little to prevent this decennial debacle. Justice Frankfurter clearly saw the issue and the restricted role of the judiciary nearly four decades ago. In Colegrove v. Green (1946) 328 U.S. 549, 554 [ 90 L.Ed. 1432, 1435 , 66 S.Ct. 1198 ], he observed that “The one stark fact that emerges from a study of the history of .. . apportionment is its embroilment in politics, in the sense of party contests *694 and party interests.” He concluded ( 328 U.S. at p. 556 [ 90 L.Ed. at p. 1436 ]) that “Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly .... The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action and, ultimately, on the vigilance of the people in exercising their political rights.” (Italics added.)

Although it is not the responsibility of the judiciary to solve this essentially political problem, I cannot resist suggesting that a better solution to achieving equitable reapportionment must be found if the people of California are to be served effectively. What that solution should be is beyond my ken. But the wrenching experiences of 1971 and 1981 indicate the people and their representatives should tarry no longer in seeking an answer.