SACRAMENTO – A recent state Supreme Court ruling that was a win for Gov. Jerry Brown's judicial reform initiative makes it plain that the high court is fine with amendments that were added after the comment period, a small business advocate said during a recent interview.
"The court actually doesn’t think it’s a bad thing that the amendments occurred after the close of the comment period," Small Business Action Committee President Joel Fox said during a Northern California Record email interview. "They argue the comment period is for pointing out flaws in the initiative which the initiative authors can then change. The justices probably think that it is a good thing that the comments can be used to find flaws but as I wrote it is not mandatory to apply the comment period to amendments that are filed after the comment period is done."
Fox is editor of Foxes and Hounds Daily and recently wrote about Brown's measure, suggest it might become the state's first "gut and amend" initiative. “Gut and amend” refers to legislation stripped of its content and replaced with new content, bypassing any prior committee action and very often providing little time for law makers to study what is, essentially, new legislation.
With the high court's latest majority opinion, the governor's initiative will be allowed to move forward, despite substantial amendments added to the original measure after the public comment period had closed.
Brown introduced his initiative, The Public Safety and Rehabilitation Act of 2016, in January. The initiative would reintroduce parole hearings and early releases, paving the way for certain nonviolent felons to become eligible for parole after once they complete the basic term measured out by their original offense, with good behavior. The initiative, aimed at fixing California's over-crowded prison system, would be a major change to the fixed-term sentences that Brown himself signed into law in the 1970s when governor before.
Once the initiative was introduced, the race was on for enough signatures to get it onto the November ballot. However, the initiative almost immediately ran into trouble when a lower court lower court blocked the measure, citing concerns from a state district attorneys association that it evaded election law. In February, the state Supreme Court temporarily stayed the lower court's ruling.
"There is no question that the changes the proponents made to this initiative measure were, in certain respects, quite extensive. However, that is their right, so long as the changes are reasonably germane to the original theme, purpose, or subject," the high court said in the opinion written by Justice Carol Corrigan. "The amended measure, like the original, addresses the process for transferring minors to adult court for criminal prosecution, and expands parole suitability review for state prisoners."
Justices Tani Cantil-Sakauye, Kathryn Werdegar, Goodwin Liu, Mariano-Florentino Cuéllar and Leondra R. Kruger concurred with Corrigan in the court's decision.
Writing as the lone dissenter in the decision, Justice Ming Chin wrote that the stated reason for the initiative, to enhance public safety, improve rehabilitation, and avoid the release of prisoners by a looming federal court order, has nothing to do with juvenile offenders or with the original measure's focus on juveniles.
"Dramatically changing the sentencing laws - by permitting early parole for some offenders, contrary to the detailed sentencing scheme currently in effect - is not reasonably germane to changing the treatment of juvenile and youthful offenders in the criminal justice system," Chin wrote in his dissenting opinion. "Supposedly avoiding the release of prisoners by federal court order - the purpose the proponents stress in their argument that the measure must qualify for the 2016 ballot - has nothing to do with the original measure."
With the overwhelming majority of the court ruling in the governor's favor over Justice Chin's dissent, the initiative can move forward. The initiative certainly has strong support, which could lead to its success, Fox said.
"Do I think the measure will pass?" Fox said. "The governor is behind it and he has great sway. He also has a campaign chest that he cannot use to run for office so the initiative will have financial support. District attorneys around the state will oppose, perhaps joined by police officials."
Fox added that may not be enough.
"They will be able to gain attention and make formidable opponents," he said. "However, I don’t know how much financial resources opponents will have. Also, consider that the demographic of voters who are expected to turnout might be supportive of the idea so it has a decent chance of passing."