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Just two years after an extraordinary gubernatorial recall, California voters next month will go to the polls for yet another not-regularly-scheduled election. The ballot will contain no statewide candidates, just eight initiatives concerning such disparate issues as regulation of electricity providers, legislative redistricting, prescription drugs (two of the eight are on that topic), and the probationary period for public school teachers. Much attention � and campaign money � will be lavished on the pros and cons of the initiatives sponsored by Gov. Schwarzenegger. It was one of these � a measure to limit state spending � that led the governor to call for this special off-year voting in the first place. Another initiative is also likely to be hotly debated because it involves the consistently controversial issue of abortion. Proposition 73 would amend the California Constitution to mandate a physician to notify a pregnant minor’s parent at least 48 hours before the girl can have an abortion or require the minor to personally appear in court to convince a judge by clear and convincing evidence that she is entitled to a waiver of the notice requirement. A waiver would be allowed only if the judge finds that the girl “is sufficiently mature and well informed to decide whether to have an abortion” or that notifying a parent is not in the girl’s “best interests.” The initiative proposes to add parental notification to the state Constitution because the California Supreme Court eight years ago held that a similar law in statutory form violated that Constitution. In American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, Chief Justice Ronald George wrote for the court that requiring parental notification violated the pregnant minor’s right of privacy guaranteed by article I, section I, of the state charter. There are many good reasons for rejecting parental notification as a matter of policy. As the Supreme Court said in striking down the parental notification statute: “No one would doubt the value to a pregnant minor of wise and caring parental guidance and support as she confronts a decision that will affect the rest of her life, assuming such support is available and the minor is willing to seek it. The statute at issue, however, applies not only to a pregnant minor who is willing to seek parental advice and consent, but rather has its most significant impact in those instances in which a pregnant minor is too frightened or too embarrassed to disclose her condition to a parent (or to a court).” Undoubtedly, the debate over Prop 73 will focus primarily on such issues as whether forced parental notice will lead to “wise and caring parental guidance and support” (according to the Supreme Court, evidence in the case before it showed that “the primary determinant of whether a pregnant minor will consult her parent or parents is the quality of the parent-child relationship that existed before the minor became pregnant, and not the presence or absence of a parental consent statute”) or whether such a requirement will cause many pregnant young girls to forgo medical care altogether for the secret and highly dangerous alternative of an illegal abortion as in the days before Roe v. Wade. But there is an additional aspect of the proposal that should be of particular concern to the legal community. Aside from the strain that requiring minors to petition a judge for a parental-notification waiver would have on our overworked courts � among other things, Prop 73 would require a court hearing within two days of a petition’s filing and a ruling one day thereafter and a Court of Appeal hearing within three days of the filing of a notice of appeal with an opinion one day later � the initiative contains a provision that has the potential to greatly politicize the judicial decision-making process.
Hidden toward the end of the nearly 3,000-word initiative is the requirement that each court publicly report annually “ by judge” the number of petitions granted and denied in the trial and appellate courts. Thus, if Prop 73 passes, every judge and appellate justice in this state who rules on a minor’s petition for a waiver of parental notification will have his or her own abortion scorecard. It is not difficult to see the mischief that these annual reports could cause. Advocacy groups on either side of the abortion debate could (mis)use a judge or justice’s scorecard during contested superior court elections, appellate court retention elections, or even judicial recall elections. It is not far-fetched to imagine a campaign flier proclaiming that Judge X or Justice Y “ordered the killing of 10 unborn children last year,” a statement, incidentally, that would not be far from legal accuracy since another thing Prop 73 would do is define “abortion” as “caus[ing] the death of the unborn child.” Judging a judge by the number of times she or he has ruled one way or another on a factual question is inherently flawed. Circumstances will vary substantially from one case to the next. Chief Justice John Roberts Jr. said at his confirmation hearing that a judge is like a baseball umpire. Borrowing the analogy, it would be meaningless to rate an umpire based on the number of balls or strikes he called during a season; you would have to see the individual pitches to pass on the quality of the umpire’s judgment. Significantly, while one can look behind an umpire’s raw numbers to evaluate the propriety of ball or strike calls, it will be impossible to look behind a judge’s abortion scorecard. Prop 73 mandates that all court proceedings regarding a minor’s petition be sealed. Thus, judges and justices will be defenseless against a campaign based on the annual reports, unable to justify or explain any of the rulings he or she made. The annual report requirement will damage the judicial branch. In addition to leaving judges open to unfair and misleading attacks, the judiciary will inevitably be tainted by the question whether decision-making is influenced by the concern of judges or justices that their abortion scores will be perceived by voters as too high or too low. When the Supreme Court struck down the parental notification statute in 1997, it noted that the evidence at trial “overwhelmingly indicated” that the statute “would not serve � but rather would impede � the state’s interests in protecting the health of minors and enhancing the parent-child relationship.” Prop 73 does the statute one better by striking at judicial independence as well. David S. Ettinger is an appellate lawyer in Encino.

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